An ex parte communication is contact about a case between one side and the decision maker without the other side present or notified. In a court-martial, that means trial counsel, the prosecutor, communicating with the military judge about the case outside the presence and knowledge of the defense, or the reverse. The military justice system treats the judge’s neutrality as fundamental, so the line between a routine logistical message and an improper substantive contact is one that counsel and judges are expected to respect carefully. Understanding what makes such a communication improper helps a service member recognize when the fairness of a proceeding may have been compromised.
The core principle: the judge must remain neutral
A military judge presides as a neutral arbiter. Both the rules governing courts-martial and the judicial conduct standards that apply to military judges are built around the idea that the judge should not receive information about a contested case from one party that the other party cannot see and answer. The widely followed model standard for judicial conduct states the rule directly: a judge shall not initiate, permit, or consider ex parte communications, or consider other communications made outside the presence of the parties, concerning a pending or impending matter. That prohibition is mandatory, and it reaches not only communications the judge starts but also those the judge merely allows or takes into account.
For trial counsel, the corresponding professional obligation is not to seek to influence the judge by improper means or to communicate improperly with the tribunal about the merits. So both the judge and the prosecutor have independent duties that converge on the same point: substantive case communications must happen on the record and in the presence of, or with notice to, the defense.
What makes a communication improper
The decisive factors are subject matter and notice. A communication is improper when it concerns the substance or merits of the pending case and is made to the judge without the defense present or notified, in a way that could give one side an advantage. Examples of the kind of contact that crosses the line include trial counsel privately discussing the strength of the evidence, the credibility of a witness, an anticipated ruling, sentencing considerations, or strategy with the judge while the defense is absent and unaware. A private conversation that touches the disputed issues the judge will decide is the classic improper ex parte contact.
The harm is twofold. There is the risk that the judge’s decision is actually swayed by information the defense never had a chance to rebut, and there is the separate harm to the perception of fairness. Even if the judge would have ruled the same way, a substantive ex parte contact erodes confidence that the proceeding was impartial.
What is generally permissible
Not every contact between counsel and the judge is forbidden. The same standards that bar substantive ex parte communication carve out limited, practical exceptions. Communications for scheduling, administrative matters, or genuine emergencies that do not address the substance of the case are generally allowed, provided the judge reasonably believes no party will gain a procedural, substantive, or tactical advantage and, where appropriate, the other party is promptly informed. So a message confirming a hearing time, coordinating courtroom logistics, or handling a true emergency is ordinarily acceptable, while anything that drifts into the merits is not. The safe practice, widely followed, is to put the defense on notice of any such contact and to keep substantive matters on the record.
The connection to unlawful command influence and impartiality
Improper ex parte contact in a court-martial can implicate broader doctrines. The military judge may not consult about the case except in the presence of the parties, reflecting the structural insistence on transparency. When improper influence on a judge, member, witness, or counsel is alleged, the military system analyzes it as interference with the adjudicative process, a recognized category of unlawful influence. An ex parte communication that pressures or improperly informs the judge can therefore be challenged not only as a judicial conduct problem but as an intrusion on the integrity of the adjudication. The test in this area asks whether an objective, disinterested observer, fully informed, would harbor a significant doubt about the fairness of the proceeding. A substantive ex parte contact between the prosecutor and the judge is exactly the sort of thing that can create that doubt.
How a problem is raised and addressed
If the defense learns of an improper communication, the remedy begins with putting the matter on the record and asking the military judge to disclose what was said. Disclosure is itself a recognized cure for an inadvertent contact: when a judge does receive an improper communication, the corrective step is to inform the parties of its substance and give them an opportunity to respond. Where the contact was significant, the defense may seek recusal of the judge, additional remedies for any resulting unfairness, or appellate relief. Military lawyers also carry a duty to report serious instances of improper influence on the proceedings. The earlier the issue is surfaced, the more options exist to repair the damage to fairness.
Practical guidance for service members
A service member who suspects that trial counsel and the judge have communicated about the case outside the defense’s presence should tell defense counsel immediately and preserve any evidence of the contact, such as emails, messages, or witness observations. Counsel can ask the judge to disclose the communication on the record, evaluate whether it was substantive or merely administrative, and pursue disclosure, recusal, or other remedies as the facts warrant. The member should understand that routine scheduling contact is normal, while any private discussion of the merits is the category that raises real concern.
Bottom line
An improper ex parte communication between trial counsel and the military judge is a private contact touching the substance or merits of the pending case, made without the defense present or notified. Scheduling, administrative, and emergency matters that do not address the merits are generally permissible if handled transparently. Because such contacts threaten both actual and apparent fairness and can amount to improper interference with the adjudication, a service member who suspects one should raise it promptly through counsel and seek disclosure and any necessary remedy.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.