The right of an accused to be present at trial is among the most basic protections in any justice system, and the military is no exception. A court-martial can, in narrow circumstances, proceed without the accused physically present, a practice known as trial in absentia. Because that course removes the accused from the proceeding that may result in confinement and a punitive discharge, the rules surround it with safeguards. This article explains those protections and the conditions that must be satisfied before a service member may be tried in absence.
The starting point: a right to be present
A service member has both a constitutional and a statutory right to be present during the court-martial. Rule for Courts-Martial 804 spells out the scope of that right. The accused has the right to be present at the arraignment, at the time of the plea, at every stage of the trial including sessions held under Article 39(a) of the Uniform Code of Military Justice, during voir dire and challenges of members, at the return of findings, during the sentencing proceeding, and at post trial sessions. The presumption is presence, and trial in absence is the exception that must be justified.
The threshold safeguard: a valid arraignment
The first and most important safeguard is that the accused cannot be tried in absentia from the very beginning. The accused must first be present for a valid arraignment. Arraignment is the stage at which the charges are formally presented and the accused is called upon to plead. Only after the accused has been arraigned, and has thereby been brought within the jurisdiction of the court and informed of the charges, can the proceeding continue in absence. This requirement ensures that no service member is convicted on charges he or she never had the opportunity to confront in person.
The voluntariness requirement
The second safeguard is that the absence must be voluntary. Under Rule for Courts-Martial 804, an accused may be tried in absentia when the accused is voluntarily absent after arraignment. The rule applies whether or not the military judge specifically warned the accused of the obligation to remain present, but the absence itself must be a choice rather than the product of circumstances beyond the accused’s control. An accused who is hospitalized, detained by another authority, or otherwise prevented from attending has not voluntarily absented himself, and the trial generally cannot proceed without him.
The government’s burden of proof on absence
A further protection is the allocation of the burden. The government, not the accused, must establish that the absence is voluntary, and it must do so by a preponderance of the evidence. This means the prosecution has to come forward with facts showing that the accused knew of the proceeding and chose not to attend, rather than the defense having to prove some excuse. Requiring the government to carry this burden guards against trying a service member in absence based on speculation about why he is missing.
Judicial discretion as a check
Even when the threshold conditions are met, trial in absentia is not automatic. Rule for Courts-Martial 804 authorizes but does not require the trial to proceed in the accused’s voluntary absence. The military judge retains discretion to decide whether going forward is appropriate. The judge can weigh factors such as the difficulty of conducting a fair trial without the accused, the burden on witnesses and the court, the likelihood that the accused will return, and the interests of justice. This discretionary judgment is itself a safeguard, because it places a neutral judicial officer between the government’s desire to proceed and the accused’s interest in being present.
Continued rights during the absence
When a trial does proceed in absence, the accused does not lose the remaining protections of a court-martial. Defense counsel continues to represent the accused, to cross-examine witnesses, to object to evidence, to present a defense, and to argue on findings and sentence. The government still must prove every element beyond a reasonable doubt, and the Military Rules of Evidence still apply. The accused’s physical absence does not lower the standard of proof or relieve the prosecution of any part of its case. In this way the trial remains adversarial and tested, even with the accused away.
Practical implications and the risk of waiver
For a service member, the practical lesson is that voluntary flight does not stop a court-martial and may forfeit the valuable right to confront the evidence in person. Because the accused must first be arraigned, a service member who absconds after that point exposes himself to a complete trial, conviction, and sentence in his absence. Conversely, a service member whose absence is involuntary should ensure that the reason is documented and communicated to counsel, because the government cannot satisfy its preponderance burden if the absence is shown to be beyond the accused’s control. Defense counsel will often press the judge to exercise discretion against proceeding, especially where there is reason to believe the accused could be located or where his presence is important to the defense.
Conclusion
Trial in absentia in the military is hedged by several layers of protection. The accused must be validly arraigned while present, the absence must be voluntary, the government must prove that voluntariness by a preponderance of the evidence, and the military judge retains discretion to decline to proceed. Throughout any such trial, the full protections of the adversarial process and the beyond a reasonable doubt standard remain in force. These safeguards reflect the principle that while a service member may forfeit the right to be present by voluntarily absenting himself after arraignment, he never forfeits the right to a fair proceeding.
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.