Desertion is an offense defined by absence, so it is unsurprising that a deserter may also be absent from the courtroom. Military law does allow a court-martial to proceed without the accused physically present in narrow circumstances, but it surrounds that possibility with safeguards designed to protect the accused’s fundamental trial rights. Those safeguards control when a trial in absentia is even permitted, what the government must prove before continuing without the accused, and what protections remain in place throughout the proceeding.
When desertion is charged
Desertion under Article 85 of the Uniform Code of Military Justice involves leaving or remaining away from one’s unit, organization, or place of duty with the intent to remain away permanently, or quitting one’s unit with the intent to avoid hazardous duty or to shirk important service. The intent element distinguishes desertion from the lesser offense of unauthorized absence. Because the accused is by definition away, the government frequently confronts the question of whether it may try the case while the accused is still gone.
The threshold safeguard: arraignment must occur first
The most important procedural protection is found in Rule for Courts-Martial 804, which addresses the presence of the accused. The general rule is that the accused has the right to be present at every stage of the trial. Trial in absentia is the exception, and it is available only after the accused has been arraigned and then voluntarily absents himself or herself. Arraignment, the point at which the accused is formally called to answer the charges, is the dividing line.
This means an accused who was never arraigned cannot be tried in absentia. Proceedings held against a never-arraigned accused who is absent are void for lack of a valid waiver, because there is no point at which the accused was present, on notice, and able to make a knowing choice to stay away. This principle parallels the rule in the civilian federal system reflected in the Supreme Court’s decision in Crosby v. United States, which held that the Federal Rules of Criminal Procedure do not permit trying a defendant who is absent at the very beginning of trial. For desertion cases, this safeguard is significant: a service member who deserted before ever being arraigned generally cannot be convicted in a trial conducted in his or her absence.
Voluntary absence as waiver, and the findings the court must make
Once an accused has been arraigned and properly notified, an unjustified, voluntary absence is treated as a waiver of the right to be present, including the right to confront and cross-examine witnesses. But the waiver must be genuinely voluntary, and the court cannot simply assume it. Before proceeding without the accused, the military judge must carefully ascertain and document the necessary facts: that the accused was arraigned, that the accused had notice of the proceedings, and that there is no justifiable reason for the absence. If the absence might be involuntary, for example because the accused is in custody elsewhere, hospitalized, or otherwise prevented from attending, the basis for treating it as a voluntary waiver is absent.
These findings function as a check against convicting someone who is missing for reasons beyond their control. The judge’s obligation to make a record of arraignment, notice, and the lack of justification ensures that the decision to proceed can be reviewed and that the waiver rests on a factual foundation rather than mere convenience.
Protections that continue during the trial
Even when a trial properly continues in the accused’s absence, core protections do not disappear. The accused retains the right to defense counsel, and counsel continues to represent the absent accused, test the government’s evidence, and preserve objections. The government still bears the burden of proving every element of desertion, including the demanding intent element, beyond a reasonable doubt. The rules of evidence still apply, and the proceeding remains subject to post-trial and appellate review, during which the validity of proceeding in absentia can itself be challenged. If the accused later returns, issues surrounding the absence and any resulting prejudice can be raised.
Practical takeaways
A desertion case can be tried in absentia, but only within strict limits. The accused must have been arraigned before the absence; an accused who never appeared cannot be tried while gone. The absence must be voluntary and unjustified, and the military judge must affirmatively find and document arraignment, notice, and the lack of any justifiable reason before continuing. Throughout, the accused keeps the right to counsel, the government keeps its full burden of proof, and the proceeding remains reviewable. These safeguards reflect the tension between the military’s interest in holding deserters accountable and the constitutional and statutory rights that attend any criminal trial. Because the rules are technical and the stakes are high, counsel should be involved at every stage, and the application of these principles depends on the specific facts of each case.
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.
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