Tag: Military Law Q&A

Yes, a service member can be retried, but it depends on the nature of the prosecutorial misconduct and the reason for the mistrial. The Fifth Amendment’s Double Jeopardy Clause protects a person from being tried twice for the same offense. However, a mistrial is not the same as an acquittal. It is a ruling by the judge that stops the trial before a verdict is reached due to a serious error.

If the mistrial is declared because of prosecutorial misconduct, the general rule is that a retrial is permissible as long as the prosecutor did not intentionally cause the mistrial to gain a tactical advantage. For example, if a prosecutor inadvertently introduces improper evidence and the judge declares a mistrial, a new trial can usually be held. The remedy for the misconduct is starting over with a clean slate, not letting the accused go free.

However, there is a narrow exception. If a military defense attorney can prove that the prosecutor intentionally committed the misconduct with the specific purpose of goading the defense into asking for a mistrial (perhaps because the prosecutor’s case was going poorly and they wanted a “do-over”), then the Double Jeopardy Clause may bar a retrial. The attorney would have to make a motion to dismiss, and the judge would hold a hearing to determine the prosecutor’s intent. This is a very high bar to meet, but it provides a crucial protection against deliberate governmental overreach.…

No, a command is generally not permitted to initiate or process an administrative separation for a service member while there are ongoing court-martial proceedings against them for the same underlying conduct. The military justice system gives precedence to the court-martial process. A court-martial is a federal criminal trial with the highest level of procedural protections and the most severe potential punishments, including a punitive discharge. The administrative separation process, with its lower standard of proof, must wait.

The rationale for this rule is to prevent administrative processes from interfering with or improperly influencing the criminal trial. The service member and their defense counsel must be able to focus entirely on defending against the criminal charges. Furthermore, the outcome of the court-martial will often dictate the administrative outcome. A conviction at a court-martial that includes a punitive discharge makes a separate administrative separation unnecessary. An acquittal at a court-martial significantly weakens the basis for any subsequent administrative action.

A military defense attorney would immediately object if a command attempted to initiate a separation board while court-martial charges were pending. The attorney would file a motion with the command’s legal office to have the administrative action placed on hold or “abated” pending the final resolution of the court-martial. This ensures that the criminal justice process is allowed to run its course without interference and that the soldier is not forced to fight a legal battle on two fronts at once.…

This question contains a slight misunderstanding of the UCMJ. Article 117 deals with “Provoking speeches or gestures,” not threats. A threat is typically prosecuted under the General Article, Article 134, UCMJ, which prohibits all disorders and neglects to the prejudice of good order and discipline. Communicating a threat is a classic example of such conduct. The use of an encrypted messaging platform presents an evidentiary challenge for the government, but the offense is still prosecutable.

To prosecute the offense, the government must first gain access to the threatening messages. This is the biggest hurdle. Investigators, such as CID or NCIS, may be able to obtain the messages through a search warrant for the electronic device, by obtaining consent from the recipient of the threat, or through other investigative techniques. Once the content of the message is obtained, the use of an encrypted platform is irrelevant to whether the words constitute a threat.

The prosecution must then prove beyond a reasonable doubt that the accused was the one who sent the message and that the language used constituted a “true threat.” This means the message, when viewed in context, would convey to a reasonable person a serious expression of an intent to inflict bodily harm. A military defense attorney would challenge the attribution of the message to their client and would also argue that the language used was a joke, hyperbole, or was not a serious expression of intent to harm.…

Automatic appellate review by the service’s Court of Criminal Appeals is triggered under Article 66 of the UCMJ by the severity of the sentence adjudged at a court-martial. Any court-martial conviction that includes a sentence of a punitive discharge (either a Bad Conduct Discharge or a Dishonorable Discharge), confinement for one year or more, or death, is automatically appealed. The service member does not need to request this appeal; it is a mandatory legal requirement designed as a powerful safeguard against unjust convictions and sentences.

This automatic review is a comprehensive process. A new, specialized military appellate defense attorney is assigned to the case. They will conduct a “top-to-bottom” review of the entire record of trial, which includes a verbatim transcript of the proceedings and all the evidence that was presented. The attorney will search for any and all potential legal errors that may have occurred, from pretrial motions and evidentiary rulings to the findings and the sentence.

The appellate court has broad authority. It will review the case for legal error, factual sufficiency (is the evidence sufficient to support the finding of guilt?), and sentence appropriateness. The court can set aside the conviction, order a new trial, reduce the sentence, or affirm the findings and sentence. This mandatory, automatic appellate review for all serious court-martial convictions is one of the most significant due process protections in the entire military justice system, ensuring that no soldier is severely punished without at least one level of independent judicial oversight.…

Yes, a military judge has the authority to dismiss charges sua sponte (on their own initiative, without a request from either party) for a lack of evidence, though this is typically done through a procedure known as a “finding of not guilty” after the prosecution rests its case. This authority is a crucial part of the judge’s role as the impartial arbiter of the law and a gatekeeper who ensures that a case without sufficient evidence does not go to the panel members (the jury).

The procedure is governed by Rule for Courts-Martial (RCM) 917. After the prosecution has presented all of its evidence and has “rested” its case-in-chief, the defense will almost always make a formal “motion for a finding of not guilty.” The defense argues that, even when viewing the government’s evidence in the light most favorable to them, they have failed to produce legally sufficient evidence to support a conviction. Even if the defense does not make this motion, the judge has an independent duty to consider the issue.

The legal standard for the judge is whether there is any evidence from which a reasonable panel member could find the accused guilty beyond a reasonable doubt. If the judge determines that the prosecution has completely failed to present evidence on a key element of the offense, they must grant the motion. The judge will enter a finding of not guilty, which has the same effect as an acquittal by a panel. This is a complete bar to any further prosecution for that offense.…

The military applies the exclusionary rule vigorously to evidence obtained from a search that was conducted without proper command authorization. The Fourth Amendment protects service members from unreasonable searches and seizures. In the military context, a “search authorization” issued by a commander is the equivalent of a search warrant issued by a civilian magistrate. For this authorization to be valid, the commander must have probable cause to believe that evidence of a crime is located in the place to be searched.

If a search is conducted without this required authorization, or if the authorization was not based on probable cause, the search is illegal. A military defense attorney will file a motion to suppress any and all evidence that was seized as a result of that illegal search. This motion is a formal request to the military judge to exclude the evidence from the court-martial. The attorney will argue that the evidence was obtained in violation of their client’s constitutional and military due process rights.

Under the “fruit of the poisonous tree” doctrine, not only is the evidence directly seized during the illegal search suppressed, but any other evidence that was later discovered as a direct result of that initial illegal search is also suppressed. If the military judge grants the motion to suppress, the prosecution is legally barred from using that evidence against the accused at trial. This exclusionary rule is the primary remedy for an illegal search and is a powerful deterrent that ensures commanders follow the proper procedures before intruding on a service member’s privacy.…

To prove a charge of making a false official statement under Article 107 of the UCMJ, the prosecution must prove beyond a reasonable doubt that the service member acted with a “specific intent to deceive.” This is a higher standard than simply showing that the statement was inaccurate. The government must prove that the accused knew the statement was false and that they made it with the conscious objective of misleading the agency or person to whom the statement was made. An honest mistake or a statement made out of confusion is not enough for a conviction.

This element of specific intent is the most critical part of the offense and is often the main point of contention at a trial. The prosecution will use circumstantial evidence to prove the intent to deceive. For example, they might show that the accused had a clear motive to lie, such as to avoid punishment, to obtain a benefit they were not entitled to, or to cover up for someone else. They might also present evidence that the accused made other, related false statements, showing a pattern of deceit.

A military defense attorney will directly attack this element. They will present a “mistake of fact” defense, arguing that their client genuinely believed the false statement was true at the time they made it. The attorney would present evidence to show why their client’s belief was reasonable under the circumstances. They would also present evidence of their client’s good military character for truthfulness to argue that it is out of character for them to intentionally lie. If the defense can create reasonable doubt about the specific intent to deceive, the Article 107 charge must fail.…

No, the findings and recommendations from a line-of-duty (LOD) investigation are generally not admissible as evidence during the findings (guilt or innocence) phase of a court-martial. An LOD investigation is an administrative inquiry, usually conducted after a soldier is injured or killed, to determine if the event occurred “in the line of duty.” This determination affects eligibility for medical benefits and survivor benefits. It is not a criminal investigation and does not follow the rules of evidence.

The LOD report contains opinions, hearsay, and conclusions that are not subject to cross-examination and would be considered improper and highly prejudicial at a court-martial. A military prosecutor cannot introduce the LOD finding that a soldier’s injury was “not in the line of duty due to their own misconduct” as evidence to prove that the soldier is guilty of that misconduct at a criminal trial. This would violate the accused’s right to have their guilt determined only by the evidence presented in court.

A military defense attorney would immediately file a motion in limine to exclude any mention of the LOD investigation from the court-martial. The attorney would argue that the report is irrelevant, that it is inadmissible hearsay, and that its conclusions would usurp the role of the court-martial panel, which is to make its own independent finding of guilt or innocence based on the trial evidence. A military judge would almost certainly grant this motion, ensuring that the administrative findings of the LOD investigation do not improperly influence the criminal verdict.…

No, it is absolutely unlawful for a command to restrict a service member’s access to legal counsel, especially when charges are pending. The right to counsel is one of the most fundamental rights guaranteed by the Sixth Amendment to the U.S. Constitution and the UCMJ. Any attempt by a commander to interfere with, delay, or discourage a service member from consulting with their defense attorney is a serious and flagrant violation of the law. This can be considered a form of Unlawful Command Influence (UCI).

A commander cannot order a soldier not to speak with their lawyer. They cannot deny them the time or the means (like a telephone) to contact their lawyer. They cannot threaten the soldier with negative consequences for seeking legal advice. Such actions are a direct attack on the integrity of the military justice system and the attorney-client relationship.

A military defense attorney who learns that a command is restricting their client’s access will take immediate and aggressive action. They will first contact the commander’s own legal advisor (the SJA) to report the illegal restriction and demand that it cease immediately. They will also advise their client to file a formal complaint with the Inspector General for UCI and abuse of authority. The attorney can also file a motion with the military judge to have the charges dismissed or for other remedies based on the commander’s gross violation of their client’s constitutional rights.…

A failure by investigators, such as CID or NCIS, to investigate credible alternate suspects can be a significant due process violation that a defense attorney can use to challenge a sexual assault prosecution. While investigators are not required to chase down every fanciful lead, if the defense provides them with credible information pointing to a plausible alternate suspect, the investigators have a duty to conduct a reasonable inquiry. Their goal is supposed to be to find the truth, not just to build a case against the initial suspect.

If the investigators fail to do this, a military defense attorney can argue that the investigation was biased, incomplete, and fundamentally unfair. During a court-martial, the attorney would cross-examine the lead investigator about their failure to pursue the other leads. They would ask the agent why they chose not to interview the alternate suspect or to follow up on the evidence provided by the defense. This can make the entire investigation appear incompetent or biased in the eyes of the court-martial panel.

The attorney will also present the evidence about the alternate suspect directly to the panel as part of the defense case. They will argue that the government has not met its burden of proving their client’s guilt beyond a reasonable doubt because there is another person who could have committed the crime. The failure of the investigators to properly look into this other person creates a powerful reasonable doubt. This strategy shifts the focus from the client and places the quality and integrity of the government’s investigation on trial.…