Military Lawyers

Private messages on platforms like Facebook Messenger, Instagram, Snapchat, and similar services are now routine evidence in military prosecutions. When the government accuses a service member of solicitation, the alleged proof often consists of direct messages said to have been sent by the accused. The question of whether those private messages can be admitted at a court-martial does not have a simple yes-or-no answer. The messages can be admissible, but only if the government clears several distinct evidentiary hurdles under the Military Rules of Evidence. The most important and most contested of these is authentication.

What solicitation requires

Solicitation in the military is, in general terms, the act of advising, counseling, commanding, or otherwise seeking to induce another person to commit an offense. The content of a communication is frequently the core of the proof. If the government alleges that the accused used private messages to urge someone to commit a crime, the words of those messages are what tend to establish the solicitation. That is exactly why the admissibility of the messages is so central to these cases: the messages are not background, they are the alleged act itself.

Authentication is the threshold problem

Before any document or electronic communication can be admitted, it must be authenticated. Under the Military Rules of Evidence, the authentication requirement, which parallels the federal rule, demands evidence sufficient to support a finding that the item is what its proponent claims it to be. The standard does not change because the evidence is digital rather than on paper; the same authentication principle applies to a screenshot of a chat as to a signed letter.

For private social media messages, authentication has two layers that are easy to confuse but legally distinct. The first is authenticating that the message exists and was received in the form presented, which can often be established by testimony from the person who received it or who captured it. The second, and far harder, layer is proving who actually authored the message. Demonstrating that a message came from a particular account is not the same as demonstrating that the accused, rather than someone else, wrote and sent it.

Proving authorship, not just account ownership

The decisive issue in most contested social media cases is authorship. Courts have repeatedly recognized that one who receives an electronic message can authenticate having received it simply by testifying to that fact, but proving the …

The Article 32 preliminary hearing is the gateway to a general court-martial, and the person who runs it is the preliminary hearing officer, usually called the PHO. This officer hears the evidence, rules on questions that arise during the proceeding, and writes a report recommending how the charges should be handled. Because the PHO sits in such an important position, service members and families often ask what qualifies someone to fill that role and what training the law requires. The honest answer focuses less on a single mandatory training course and more on the legal qualifications the statute and rules impose, the structure that supports the PHO, and the safeguards that protect the integrity of the hearing.

The Statutory Preference for a Judge Advocate

The governing law expresses a clear preference for who should serve as a preliminary hearing officer. Whenever practicable, the PHO is to be a judge advocate, that is, a military attorney, who is certified as competent to perform such duties under the certification provision of the code. This preference reflects the recognition that the hearing involves legal judgments, including assessing probable cause, ruling on matters that come up during the proceeding, and producing a report that addresses jurisdiction and disposition. A trained military lawyer is presumptively the right person for those tasks.

The certification reference is significant. Judge advocates are certified as qualified to perform certain functions under the supervision of the Judge Advocate General of their service. That certification process, which underlies a judge advocate’s qualification to serve in roles such as counsel, is the foundation of the competence the statute looks to when it directs that the PHO should ordinarily be a certified judge advocate.

The Exception for Exceptional Circumstances

The law recognizes that it will not always be practicable to appoint a certified judge advocate. When exceptional circumstances make that impracticable, the convening authority may appoint an impartial commissioned officer who is not a judge advocate to serve as the preliminary hearing officer. This is the exception, not the rule, and it is reserved for situations where appointing a judge advocate genuinely cannot be accomplished.

When a non-lawyer officer serves as the PHO, the law does not leave that officer to navigate the legal questions alone. In that situation, a judge advocate who is certified must be available to provide legal advice to the hearing officer. This requirement ensures that even when the …

Article 99 of the Uniform Code of Military Justice (UCMJ), titled “Misbehavior before the enemy,” is one of the most serious offenses a service member can face, because it reaches conduct that can endanger an entire unit in the most dangerous circumstances. A common point of confusion is the phrase “combat zone.” Article 99 does not actually use that term. The statute keys the offense to conduct committed “before or in the presence of the enemy.” Understanding the difference between a geographic combat zone and the statutory trigger is the first step in understanding what the article covers.

“Before or in the presence of the enemy,” not a mapped combat zone

Article 99 is codified at 10 U.S.C. section 899. The statute applies to any person subject to the UCMJ who, “before or in the presence of the enemy,” engages in any of the enumerated forms of misconduct. Whether a service member is “before or in the presence of the enemy” is a factual question that turns on the tactical situation rather than on whether the member is standing inside an officially designated combat zone for pay or tax purposes. A unit can be “before the enemy” when it is positioned for imminent contact, and a member can be “in the presence of the enemy” when actual hostilities are near enough that the member’s conduct could affect the engagement. Conversely, a service member who is in a theater of operations but far removed from any tactical encounter with hostile forces may not be “before or in the presence of the enemy” at all. The phrase describes a relationship to the enemy and the fighting, not a line on a map.

The conduct Article 99 enumerates

Rather than defining “misbehavior” in the abstract, Article 99 lists specific forms of misconduct. A service member commits the offense if, before or in the presence of the enemy, he or she does any of the following. The member runs away. The member shamefully abandons, surrenders, or delivers up any command, unit, place, or military property that it was his or her duty to defend. The member, through disobedience, neglect, or intentional misconduct, endangers the safety of any such command, unit, place, or military property. The member casts away arms or ammunition. The member is guilty of cowardly conduct. The member quits his or her place of duty to plunder or pillage. The member causes …

The Article 32 preliminary hearing is not a trial, and the preliminary hearing officer does not rule on the admissibility of evidence the way a military judge does at trial. That limited role surprises many people and creates a practical question for the defense: if evidentiary problems cannot be decided at the Article 32 stage, how does a party make sure those problems are not lost? The answer lies in understanding what the hearing officer can and cannot do, and in using the record-making tools that the rules provide.

The hearing officer’s limited evidentiary role

Under Article 32 of the UCMJ and Rule for Courts-Martial (RCM) 405, the preliminary hearing exists to determine whether the charges allege an offense, whether there is probable cause to believe the accused committed the offense, whether the convening authority has jurisdiction, and what disposition the hearing officer recommends. The hearing is focused on probable cause, which is one of the lowest standards in the legal system. The 2019 reforms deliberately narrowed the hearing’s purpose and removed broad discovery as an authorized objective.

Because of this narrow purpose, the preliminary hearing officer applies a relaxed approach to evidence rather than the full Military Rules of Evidence that govern a court-martial. The officer is not the gatekeeper who decides whether a confession was lawfully obtained, whether a search was valid, or whether a piece of testimony is admissible hearsay. Those are merits questions reserved for the military judge after referral. As a result, an objection that a piece of evidence is inadmissible will generally not be ruled on at the Article 32.

Preservation through the report and written objections

Even though the hearing officer does not rule on admissibility, the rules build in a preservation mechanism. Under RCM 405, the preliminary hearing officer is not required to rule on objections that the procedures of RCM 405 were not followed, but the officer must include those objections in the report if the objecting party requests it. The officer may also set a reasonable period after the hearing closes for the parties to submit written objections, and the officer may, but is not required to, respond to each objection in the report.

This is the heart of preservation at the Article 32 level. The defense preserves an issue not by winning a ruling but by making the objection on the record and requesting that it be memorialized in …

Most contested sexual assault cases under Article 120 of the Uniform Code of Military Justice (UCMJ) come down to credibility. There is often little physical evidence, no neutral eyewitness, and two people who describe the same encounter very differently. In that setting, the panel decides whom to believe. A defense attorney’s job is to give the members concrete, lawful reasons to doubt the reliability of the accusing testimony. This article explains the main avenues for challenging credibility, while keeping within the rules that govern military trials.

The difference between credibility and character

Before examining tactics, it helps to separate two ideas that are easy to confuse. Challenging credibility means questioning whether a particular account is accurate and truthful. It is about the reliability of the testimony in this case. Attacking character, by contrast, means suggesting a witness is a generally bad or dishonest person, which the rules sharply restrict. Effective credibility work focuses on the testimony, not on the person, and stays within the boundaries the Military Rules of Evidence (MRE) impose.

Internal inconsistencies and prior statements

The most direct method is to expose inconsistencies. Sexual assault cases usually generate multiple accounts of the same event: an initial report, an interview with investigators, a statement to a sexual assault response coordinator or medical provider, and finally testimony at trial. Each account is an opportunity to compare.

A defense attorney gathers these statements in discovery and compares them carefully for differences in timeline, location, sequence, who said what, and which details are remembered. When the trial testimony departs from an earlier statement, counsel may confront the witness with the prior inconsistent statement on cross-examination. The point is not simply to catch a single discrepancy but to show whether the account has shifted in ways that matter to the elements of the offense.

Memory, perception, and the limits of detail

A second avenue addresses how memory and perception work, particularly where alcohol is involved. Memory is reconstructive rather than a recording. Under stress or intoxication, gaps can be filled in unconsciously, producing a sincere but inaccurate account. This phenomenon, sometimes described as confabulation, does not require dishonesty.

This creates a fertile area for cross-examination. When a witness reports heavy drinking, periods of confusion, or blackout, yet also claims to recall specific details with precision, the defense can probe that tension. How can someone remember a precise detail from a window of time …

Article 120 of the Uniform Code of Military Justice, codified at 10 U.S.C. 920, covers rape, sexual assault, aggravated sexual contact, and abusive sexual contact. These are among the most serious charges a service member can face, and they often generate intense local attention within a command. When a sexual offense allegation becomes widely known on a small installation, an accused may reasonably worry that the people who will sit as court members, or the broader command climate, have already formed opinions. The natural question is whether the case can simply be moved somewhere else so that it is heard by people with no connection to the rumor mill. The answer is yes in principle, but the mechanism and the threshold are narrower than many expect.

There is no automatic right to a new location

A court-martial is convened by a convening authority, typically a senior commander, and the case is ordinarily tried where that command sits. Unlike a civilian criminal defendant who may invoke constitutional venue protections tied to a geographic district, a service member does not have a freestanding right to be tried at any particular installation. The convening authority selects the location, and the default is the local jurisdiction. So an Article 120 accused cannot demand a transfer simply because the charge is embarrassing or because the case has been discussed in the unit.

What the accused does have is a right to a fair trial before impartial members. When local conditions threaten that right, the military justice system provides a remedy. That remedy is a defense motion, decided by the military judge, not an entitlement triggered automatically by the seriousness of the charge.

The governing tool: change of the place of trial

The Rules for Courts-Martial (RCM) include a specific provision allowing the military judge to change the place of trial. Under RCM 906(b)(11), a defense motion for appropriate relief may ask the judge to move the proceeding to a different location. This is the military analogue to a civilian change of venue motion. The judge weighs whether holding the trial at the current installation would deprive the accused of a fair and impartial panel.

It is worth being precise about terminology. In the military, the recognized remedy is changing the place of trial, not changing the convening authority or the service component. The same charges, referred by the same convening authority, can be heard in …

A service member who is convicted at a court-martial and believes the defense attorney failed them can raise ineffective assistance of counsel on appeal. Military appellate courts take the claim seriously, but they apply a demanding, well-defined standard borrowed from civilian constitutional law and refined for the military context. Understanding how those courts evaluate the claim explains why some succeed and many do not.

The constitutional source: the right to effective counsel

The Sixth Amendment right to counsel includes the right to the effective assistance of counsel, and that protection applies to service members at courts-martial. The governing test comes from the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), which set a two-part standard for judging when a lawyer’s performance is so deficient that it violates the constitutional guarantee. Military courts have expressly adopted Strickland.

The two prongs: deficient performance and prejudice

Under Strickland, an appellant must prove two things. First, that counsel’s performance was deficient, meaning the representation fell below an objective standard of reasonableness. Second, that the deficient performance prejudiced the defense, meaning there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Both prongs must be satisfied. If the appellant cannot show prejudice, a court need not even decide whether performance was deficient, and the reverse is true as well.

The Court of Appeals for the Armed Forces applies this same two-part framework. In United States v. Gooch, 69 M.J. 353 (C.A.A.F. 2011), the court reaffirmed that to prevail on an ineffective assistance claim an appellant must demonstrate both that counsel’s performance was deficient and that the deficiency resulted in prejudice. The military’s adoption of the Strickland standard is long-settled; in United States v. Polk, 32 M.J. 150 (C.M.A. 1991), the court articulated the framework that military appellate practice continues to follow.

How the deficiency prong is applied

The first prong is difficult to meet because courts indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Appellate courts do not second-guess strategy with the benefit of hindsight. A choice not to call a particular witness, not to pursue a certain defense theory, or not to object at a given moment is ordinarily treated as a tactical judgment, and tactical judgments are virtually unchallengeable when they are informed and reasonable. The appellant must overcome the presumption and show …

Service members who have been through a court-martial often face additional administrative consequences afterward, and a written reprimand is one of the most common. A natural question follows: if the court-martial already imposed a sentence, is a later reprimand for the same conduct an unlawful second punishment? The answer turns on the difference between criminal jeopardy and administrative action, and on the specific source of the reprimand.

What double jeopardy actually protects against

The military protection against being tried twice for the same offense comes from two sources. The Fifth Amendment to the Constitution prohibits placing a person twice in jeopardy of life or limb for the same offense, and Article 44 of the Uniform Code of Military Justice (UCMJ) states that no person may, without consent, be tried a second time for the same offense. Under Article 44, jeopardy attaches in a court-martial when evidence is introduced before the finder of fact.

The key word in both protections is tried. Double jeopardy bars a second criminal trial and a second criminal punishment imposed through that trial. It does not, by its terms, reach every adverse consequence that the military can attach to misconduct. Administrative measures fall outside the constitutional and Article 44 prohibition because they are not criminal prosecutions and do not place the member in jeopardy.

Reprimands as administrative action

A reprimand is, in most forms, an administrative tool rather than a criminal sentence. It is a formal expression of official displeasure intended to correct and to document, not to convict. Because administrative measures are not trials, imposing a reprimand after a court-martial generally does not violate double jeopardy. Courts and military authorities have long treated reprimands, adverse evaluations, separation actions, and similar consequences as collateral administrative results of misconduct rather than as second criminal punishments.

This is why a member can be acquitted at court-martial and still face administrative separation, or be convicted and sentenced and still receive a reprimand afterward. The administrative system and the criminal system answer different questions. The court-martial asks whether the member is guilty of a UCMJ offense and what criminal sentence is warranted. The administrative system asks whether the member should continue to serve and on what terms.

The important distinction: punitive versus administrative reprimands

The analysis sharpens when the reprimand itself is part of the court-martial. A court-martial can adjudge a reprimand as an authorized part of a sentence. When …

Rape is the most serious offense within Article 120 of the Uniform Code of Military Justice, and it carries the most severe penalties the article authorizes. A service member accused of rape faces a punishment ceiling that includes the possibility of confinement for life. Beyond the sentence a court-martial can impose, a conviction triggers mandatory collateral consequences that follow the service member for the rest of his or her life. This article explains what rape means under Article 120 and what penalties a conviction can produce.

What Article 120 defines as rape

Article 120, codified at 10 U.S.C. 920, separates sexual offenses into tiers. Rape under Article 120(a) is the most serious tier and is distinct from sexual assault, aggravated sexual contact, and abusive sexual contact, which appear in other subsections and carry lower penalties.

Under Article 120(a), a person is guilty of rape who commits a sexual act upon another person by any of several specified means. These include causing the sexual act by using unlawful force; using force causing or likely to cause death or grievous bodily harm; threatening or placing the person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping; first rendering the person unconscious; or administering to the person, by force or threat of force or without that person’s knowledge or consent, a drug, intoxicant, or other similar substance that substantially impairs the ability to appraise or control conduct. The statute defines unlawful force as an act of force done without legal justification or excuse. It also makes clear that lack of verbal or physical resistance does not constitute consent, and that submission resulting from the use of force, threat of force, or placing a person in fear is not consent.

The presence of one of these aggravating means is what separates rape from the lesser sexual offenses in Article 120. It is the use of force, the threat of serious harm, or the exploitation of an incapacitated victim that elevates the conduct to rape and exposes the accused to the article’s harshest penalties.

The maximum sentence a court-martial can impose

The statute provides that a person found guilty of rape shall be punished as a court-martial may direct, and the Manual for Courts-Martial sets the maximum at confinement for life. The full slate of authorized punishment for rape includes confinement for life, a dishonorable discharge for an enlisted …

Plea agreements resolve a large share of military cases, and the timing of an Article 32 preliminary hearing places it at a pivotal moment in those negotiations. The hearing comes after charges are preferred but before they are referred to a general court-martial, which is exactly the window in which both sides are assessing the strength of the case and weighing whether to negotiate. The hearing can influence plea negotiations in several concrete ways, even though it is not designed for that purpose.

How plea agreements work in the military

Understanding the influence of the Article 32 hearing requires understanding the plea framework. Article 53a of the UCMJ, added by the 2016 Military Justice Act, is the authority for plea agreements, and Rule for Courts-Martial (RCM) 705 governs them. A plea agreement is an agreement between the convening authority and the accused; only the convening authority can bind the government. Under the current system, the agreement typically sets limitations on the sentence that act directly on the power of the court-martial, and once the military judge accepts the agreement, the court-martial is bound by those limits. The military judge must ensure the accused understands each provision and that the agreement is knowing and voluntary, and the judge must reject an agreement in certain circumstances.

Because the convening authority is the party who agrees to a plea, anything that shapes the convening authority’s view of the case can shape the negotiation. That is where the Article 32 hearing enters.

The hearing as a case-strength assessment

The preliminary hearing officer’s core task is to evaluate probable cause and to recommend a disposition. The resulting report gives both sides, and the convening authority, a neutral read on the case. A report that finds probable cause weak on certain charges, or that recommends a lesser disposition, can move the convening authority toward a favorable plea offer or toward dropping or reducing charges. Conversely, a report that finds strong probable cause across the board strengthens the government’s negotiating position. The hearing officer’s recommendation, while not binding, is influential precisely because it comes from a neutral evaluator before referral.

A preview of the evidence and witnesses

The Article 32 hearing also lets each side observe how the case actually performs. When witnesses testify and are questioned, counsel learn how credible and consistent those witnesses are, where the documentary evidence is strong, and where it is thin. …