Military Lawyers

Article 78 of the Uniform Code of Military Justice, codified at 10 U.S.C. 878, punishes the accessory after the fact. The offense reaches any person subject to the UCMJ who, knowing that an offense punishable by the code has been committed, receives, comforts, or assists the offender in order to hinder or prevent the offender’s apprehension, trial, or punishment. The line that decides these cases is the line between doing something to help an offender escape consequences and simply declining to help the government. Courts treat the first as concealment that can support a conviction and the second as non-cooperation that cannot.

What Article 78 actually requires

To sustain a conviction under Article 78, the government must prove four things beyond a reasonable doubt. First, that another person committed an offense punishable under the UCMJ. Second, that the accused knew that person had committed the offense. Third, that after the offense, the accused received, comforted, or assisted the offender. Fourth, that the accused did so for the purpose of hindering or preventing apprehension, trial, or punishment. Each element matters, but the third and fourth carry the most weight when the dispute is whether a service member crossed the line into criminal conduct.

The verb the statute uses is “assists.” That word demands an affirmative act. A military court reading Article 78 asks whether the accused did something to shield the offender, not whether the accused failed to expose him. This distinction is built into the structure of the offense and explains why so many Article 78 disputes turn on conduct rather than attitude.

Concealment is an affirmative act

Concealment is conduct that conceals either the offender or the offense itself. Hiding a person from investigators, destroying or moving physical evidence, giving false information to throw an inquiry off track, or providing a hiding place, transportation, money, or supplies designed to let the offender avoid capture all qualify as assistance. The help an accessory gives is not limited to acts meant to effect the escape or physical concealment of the principal. It also includes acts performed to conceal that the principal committed the offense at all. The common thread is that the accused took a step, however small, intended to frustrate the legal process.

Concealment also carries an intent requirement that courts scrutinize closely. The assistance must be intentional and designed to help the offender avoid legal consequences. Conduct that incidentally …

Command structure diagrams and organizational charts show up often in courts-martial. They help a panel understand who reported to whom, where an order originated, or how a unit was supposed to function on a given day. Because these visuals can shape how members interpret responsibility and authority, military judges scrutinize how they are offered. Whether a chart is admitted, and what the panel may do with it, depends on the purpose for which counsel offers it and the evidentiary foundation laid before it reaches the members.

Two Different Uses, Two Different Standards

The first question a judge asks is whether the chart is being offered as substantive evidence or only as an aid to help the panel follow other evidence. The distinction controls everything that follows.

A chart offered as substantive evidence is treated as proof of the facts it depicts. If it summarizes voluminous records that cannot conveniently be examined in court, it falls under Military Rule of Evidence 1006. That rule permits a summary, chart, or calculation to prove the content of admissible writings or records that are too numerous to review individually. The underlying records must themselves be admissible, and the proponent must make those records available to the opposing party for examination or copying. Under MRE 1006 the summary itself becomes an exhibit the panel can take into deliberations.

A chart offered only to illustrate or organize testimony is a different animal. Federal practice now favors the term illustrative aid over the older phrase demonstrative evidence, because the latter was used inconsistently. An illustrative aid is not evidence of anything. It exists to help the trier of fact understand testimony or argument that is already before the court. A diagram a witness draws on a board to explain a chain of command, for example, may guide the members during testimony without ever becoming substantive proof.

Foundation and Authentication

Either way, counsel must lay a proper foundation. Under MRE 901, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. For an organizational chart, that usually means a witness with personal knowledge of the unit explaining what the chart depicts, confirming familiarity with the structure, and attesting that the chart accurately reflects the reporting relationships during the relevant period.

The witness does not need to have personally drawn the chart. A senior noncommissioned officer or staff officer …

Article 96 of the Uniform Code of Military Justice punishes those who mishandle prisoners in their charge, including releasing a prisoner without proper authority, allowing a prisoner to escape through neglect or design, and drinking alcohol with a prisoner. Every one of these offenses depends on a threshold fact: the person mishandled must actually have been a prisoner. If the individual involved does not meet the definition of a prisoner, the Article 96 offense cannot stand. So before reaching questions of authority, neglect, or design, military law asks who counts as a prisoner.

The Core Definition

For purposes of Article 96, a prisoner is a person who is in confinement or custody, or who is under sentence of a court-martial. The defining feature is legal restraint imposed by competent authority, not the label attached to the person. Someone held in pretrial confinement, someone serving a sentence, and someone otherwise in lawful custody all fall within the term. The status flows from the fact that the person’s liberty has been lawfully restrained and that the person has been committed to someone’s charge.

This definition is broad enough to reach the situations Article 96 is meant to govern. The article exists to ensure that those entrusted with custody of detained persons take that responsibility seriously. Defining prisoner around the existence of lawful confinement or custody, or a court-martial sentence, captures exactly the people whose secure custody is at stake.

The Custodial Relationship Is Essential

A prisoner does not exist in the abstract for Article 96 purposes. The offenses require that the prisoner had been committed to the charge of the accused. In other words, the law looks not only at whether the person was in confinement or custody, but also at whether the accused bore responsibility for that person’s custody.

This is why the prisoner-custodian relationship is the foundation of every Article 96 charge. The government must establish that a valid relationship existed, that a particular person was a prisoner and that the accused was the one responsible for keeping that prisoner secure. A service member who has nothing to do with a detainee’s custody cannot ordinarily commit the release or escape offenses, because those offenses presuppose that the prisoner was in the accused’s charge. The duty Article 96 enforces is a custodial duty, and it attaches only when the accused has actually been given custody.

What “Release” Reveals About the Definition

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When a service member makes one statement to investigators and then makes a second, more complete confession, the defense often argues that the first statement contaminated the second, so that both must be suppressed. United States v. Brisbane, decided by the Court of Appeals for the Armed Forces (CAAF), is a leading military authority on when a later confession is “tainted” by an earlier defective statement. The decision draws a careful line between two very different situations: an earlier statement that was defective only because of a missing rights warning, and an earlier statement obtained through actual coercion.

The setting: successive statements and the taint question

In military practice the issue arises constantly. A suspect may be questioned, make an admission, and later give a fuller confession after a proper warning or after some passage of time. If the first statement was obtained in violation of the suspect’s rights, courts must decide whether the violation reaches forward to invalidate the second statement, or whether the second statement is sufficiently independent to stand on its own. The military’s protections are unusually strong here because Article 31(b) of the Uniform Code of Military Justice (UCMJ) requires warnings in circumstances broader than those that trigger civilian Miranda warnings, and the Military Rules of Evidence (MRE) govern the admissibility of confessions and derivative evidence.

What Brisbane holds about an unwarned first statement

The central teaching of Brisbane concerns a first statement that was involuntary, or inadmissible, only because the suspect had not been advised of his Article 31(b) rights. The court held that in that situation a later statement is not presumptively tainted by the earlier unwarned statement. Instead, the voluntariness and admissibility of the second statement are judged under the totality of the circumstances. The earlier unwarned statement is one factor in that picture, but it does not automatically poison what follows.

This approach mirrors the reasoning the Supreme Court used in the Miranda context, where a simple failure to warn, without more, does not require suppression of a later, properly handled statement so long as the later statement was voluntary. Brisbane applies that logic within the military system, recognizing that a missing Article 31(b) warning is a procedural defect rather than proof that the suspect’s will was overborne.

The role of a cleansing warning

Brisbane also addresses the cleansing warning, an advisement given before the second statement that informs the suspect that …

When a service member is placed in pretrial confinement, the confinement does not stand on the order of a commander alone. Rule for Courts-Martial 305 builds in a review process, and that review carries a set of procedural rights designed to ensure that locking someone up before trial is both justified and necessary. Knowing those rights is essential, because the review hearing is often the first and best opportunity to win release before the case ever reaches a court-martial.

The structure of review under RCM 305

RCM 305 establishes layered review. A commander who orders confinement must promptly decide whether continued confinement is warranted. Beyond that, the rule requires that a neutral and detached officer, appointed under regulations prescribed by the Secretary concerned, review the probable cause determination and the necessity for continued pretrial confinement within seven days of the imposition of confinement. That review officer, sometimes a military magistrate, can extend the deadline modestly for good cause, but the seven-day review is the central checkpoint of the process.

The legal test the review officer applies is demanding. Confinement may continue only if an offense triable by court-martial has been committed, the member committed it, and confinement is required by the circumstances. The circumstances element is satisfied only when it is reasonably foreseeable that the member will not appear at trial, a pretrial hearing, or an investigation, or that the member will engage in serious criminal misconduct, and when lesser forms of restraint are inadequate. These standards frame the rights that attach, because the rights exist to let the member contest each part of the test.

The right to counsel

A foundational right is the right to counsel. When a service member is placed in confinement, the member must be promptly informed of the right to retain civilian counsel at the member’s own expense and the right to request assignment of military counsel at no cost. Under RCM 305, once a confinee requests military counsel and that request is made known to military authorities, counsel is to be made available before the review or within a set period after the request, whichever comes first. Counsel is what makes the rest of the procedural rights usable, because a represented member can marshal evidence and argument that an unrepresented one often cannot.

The member must also be informed of the procedures by which the confinement will be reviewed. This notice right ensures …

A service member who has been investigated for a sexual offense under Article 120 of the Uniform Code of Military Justice and then told the matter is closed often hopes that closure is the end of it. Unfortunately, an administrative closure is rarely an absolute guarantee that the case can never return. Article 120 investigations can be reopened after they have been administratively closed, and several features of military law make reopening a real possibility. Understanding why this is so, and what protections still exist, helps a service member see the situation clearly rather than relying on a false sense of finality.

What an administrative closure actually means

It is important to understand what closing an investigation does and does not do. When a military criminal investigative organization closes a case administratively, it is generally documenting that the investigation is not being actively pursued at that time. It is not the same as an acquittal at a court-martial, and it does not carry the constitutional protection against being tried twice for the same offense that attaches once a trial has begun and reached a verdict. An administrative closure is an investigative status, not a final adjudication of innocence.

Because of that distinction, a closure leaves the door open in a way that a trial verdict does not. The case file remains, the allegations remain on record, and the matter can be revisited if circumstances change. A service member should not equate being told an investigation is closed with being permanently cleared.

The absence of a statute of limitations for the most serious offenses

One of the most significant reasons Article 120 cases can return is the statute of limitations, or more precisely its absence for the gravest offenses. Under Article 43 of the UCMJ, certain offenses may be tried and punished at any time without limitation. Rape and sexual assault fall within that category. The unlimited window for rape was long established, and Congress extended the same unlimited treatment to sexual assault for offenses occurring on or after December 26, 2013. Before that date, sexual assault offenses carried a five-year limitations period.

The practical effect is striking. For rape and for sexual assault committed on or after the December 2013 change, there is no time bar at all. An allegation that was investigated and administratively closed years ago can be revisited later, and the passage of time alone will not …

When investigators seize evidence through what the defense believes was an illegal search, the instinct is to attack that evidence at the earliest possible moment. In a court-martial, the first formal adversarial proceeding is usually the Article 32 preliminary hearing. So a natural question arises: can the defense move to suppress unlawfully obtained evidence right there at the Article 32, before charges are even referred to trial? The short answer is no, not as a suppression motion. The longer answer explains why, and what the defense can realistically do with a search problem at that stage.

What an Article 32 hearing is for

Article 32 of the Uniform Code of Military Justice, implemented by Rule for Courts-Martial (RCM) 405, requires a preliminary hearing before charges can be referred to a general court-martial, unless the accused waives it. Since the procedures were overhauled effective January 1, 2019, the hearing has a deliberately limited purpose. It exists to examine whether each specification states an offense, whether there is probable cause to believe the accused committed the charged offenses, whether the convening authority has court-martial jurisdiction over the offense and the accused, and to recommend a disposition of the case.

The Court of Appeals for the Armed Forces has emphasized that the Article 32 hearing, while important, is not part of the court-martial itself. In United States v. Davis, 64 M.J. 445, the court described the preliminary investigation as a predicate to referral rather than a trial on the merits. The hearing functions, as courts have put it, as a bulwark against baseless charges. It is a screening mechanism, not a forum for resolving the admissibility of evidence.

The Military Rules of Evidence mostly do not apply

The reason a suppression motion does not fit the Article 32 stage is structural. The Military Rules of Evidence, which contain the search-and-seizure exclusionary provisions in Military Rule of Evidence 311 and the related rules, generally do not apply at the preliminary hearing. Under RCM 405(i), only a narrow set of evidentiary rules carries over: the rules on privileges, the rape-shield protections of Military Rule of Evidence 412, and the rules governing self-incrimination warnings and interrogation.

Because the broader exclusionary framework is switched off, the preliminary hearing officer has no authority to decide that evidence was the product of an unlawful search and to exclude it on that basis. The preliminary hearing officer can hear and …

An administrative separation board decides whether a service member should be discharged and, if so, with what characterization of service. Although it is an administrative proceeding rather than a criminal trial, the stakes are high, and fairness depends on the board reaching its own conclusions free from improper pressure. When a commander or other authority interferes with that independent judgment, the result can be undue command influence, sometimes described in the military context as unlawful command influence. This article explains what that influence looks like in the separation board setting and why it matters.

What an administrative separation board is

When the government seeks to involuntarily separate an enlisted service member for reasons such as misconduct or unsatisfactory performance, the member may be entitled to a hearing before a board. In the Army, for example, the governing policy for enlisted administrative separations is Army Regulation 635-200. The board typically consists of at least three voting members who hear evidence, review documents, and make findings on whether the alleged basis for separation is supported and whether the member should be separated, along with a recommended characterization of service.

The board’s value lies in its independence. Members are supposed to weigh the evidence and recommend an outcome based on their own honest judgment. Undue command influence is anything that corrupts that independence by substituting a superior’s will for the board’s own deliberation.

The core idea: improper pressure on independent judgment

At its heart, undue command influence during a separation board is the use of rank, position, or authority to shape the proceeding’s outcome rather than allowing the evidence and the board’s judgment to control. The military recognizes that the influence of a superior can be so powerful that even subtle signals carry weight, which is why the concern reaches both blatant interference and quieter forms of pressure.

Several recurring categories illustrate what this looks like in practice.

Pressuring or instructing board members

The clearest form is direct pressure on the members themselves. If a commander tells board members, openly or through intermediaries, what outcome is expected, or signals that the wrong recommendation will affect their careers, that strikes at the board’s independence. Members must be free to find the facts as they see them. Any communication that conveys the command wants a particular result, or that discourages a member from voting his or her conscience, can constitute undue influence. This concern extends …

In a court-martial, the responsibility for securing witnesses and ensuring they know when and where to appear rests primarily with the government’s trial counsel, with the military judge exercising oversight and the defense playing a defined role in requesting witnesses. The Rules for Courts-Martial assign these duties so that both the prosecution and the defense can obtain the witnesses they need. This article explains who notifies witnesses of the hearing date, how the mechanics differ for military and civilian witnesses, and how the process works under Rule for Courts-Martial 703.

Trial counsel’s central role

Trial counsel, the prosecutor in a court-martial, carries the core obligation to obtain the presence of witnesses for the proceeding. Importantly, this duty extends not only to the government’s own witnesses but also to witnesses the defense is entitled to have produced. Trial counsel arranges for witnesses to attend, which necessarily includes notifying them of the date, time, and place at which they must appear. For practical purposes, then, the person most directly responsible for telling a witness when the hearing will occur is the trial counsel or the trial counsel’s office, working through the appropriate notification and compulsory process tools.

How the mechanism differs by type of witness

The way a witness is notified and compelled depends on whether the witness is a service member subject to military authority or a civilian who is not.

For witnesses who are members of the armed forces, attendance is secured through military channels. The witness’s commander or appropriate authority issues military orders directing the service member to appear. Active duty witnesses are notified through the chain of command and ordered to be present, which is the military equivalent of compelling attendance.

For civilian witnesses, the government cannot simply issue orders, so attendance is secured through a subpoena. A subpoena to testify, issued on a standardized Department of Defense form, commands the civilian to appear at the stated time and place. The subpoena itself serves as the formal notification of the hearing date and the legal command to attend. Government counsel typically handles the issuance and service of the subpoena and is the point of contact for matters such as requests for relief from a subpoena.

The defense’s role in requesting witnesses

The defense does not personally compel witnesses, but it has the right to request the production of witnesses relevant and necessary to its case. The defense submits …

By the time a military case reaches the motions stage before a military judge, the issues that get litigated have usually been identified much earlier. The Article 32 preliminary hearing is one of the most important sources of that early identification. Although the preliminary hearing officer does not decide motions, the hearing generates the information, testimony, and procedural record that the defense uses to draft, support, and prioritize the pretrial motions it will later file. Understanding that connection turns the Article 32 from a formality into a strategic tool.

The hearing’s place before motions practice

Under Article 32 of the UCMJ and Rule for Courts-Martial (RCM) 405, the preliminary hearing occurs before referral to a general court-martial and focuses on probable cause, jurisdiction, whether the charges state an offense, and the hearing officer’s recommended disposition. Pretrial motions, by contrast, are litigated after referral before the military judge, who applies the full Military Rules of Evidence and the Rules for Courts-Martial. The Article 32 therefore sits upstream of motions practice, which is exactly why it is so useful for shaping it. What counsel learns and records at the hearing becomes the raw material for the motions that follow.

Spotting jurisdictional and charging defects

Because the hearing officer must consider whether the convening authority has court-martial jurisdiction and whether the charges actually allege an offense, the Article 32 is a natural place to surface motions that attack jurisdiction and charging. If the facts developed at the hearing show a gap in jurisdiction, a charge that fails to state an offense, a problem with multiplicity, or an unreasonable multiplication of charges, the defense flags those issues early. A hearing officer’s report that questions probable cause on a charge, or that recommends dismissal or reduction, hands the defense a documented basis for a later motion to dismiss or for appropriate relief.

Capturing testimony that supports suppression and in limine motions

The most powerful contribution the Article 32 makes to motions practice is testimonial. When investigators or witnesses testify, counsel can develop the facts that a suppression motion depends on: how a statement was obtained, whether rights warnings under Article 31 of the UCMJ were given, how a search was conducted, and how evidence was collected and handled. Although the hearing officer applies a relaxed evidentiary approach and will not suppress anything, the sworn testimony elicited at the hearing freezes those facts while memories are …