Interviewer: Can you compare the stages of a criminal process versus the stages of a military-based criminal process and show how they are similar or different?
Chris: Right. I think the best or the closest scenario is a felony case. Generally, you’ll have a preliminary hearing and you’re going to go to court. The difference between that and the court-martial process is huge.
During your preliminary hearing as a military member you are afforded the right to counsel. You have a right to question the witnesses that are provided by the government, in order for their case to move forward.
Walking through the initial process, the charging step, to begin with, you’re charged in a local setting. You receive your criminal complaint and you show up for trial. That’s generally the way it’s going to work. You see your complaint. You see the charge. You go to trial.
In a Military Setting, the Commanding Officer Determines Reasonable Suspicion
In the military, what has to happen is your commander has to prefer charges against you. In order to prefer criminal charges, the commander has to have a reasonable suspicion that you committed a crime. He suspects you. Actually, the right word is “suspect.” He suspects you of crime.
The Commanding Officer Decides Which Level Court-Martial Will Hear the Case
There is evidence beforehand of an actual crime and he makes the decision either for the court-martial process, to either go to a summary court-martial, a special court-martial or a general court-martial.
A Summary and a Special Court Martial Handle Lower Level Offenses
If he decides to go to a summary court-martial, that is similar to a misdemeanor type court. You only can get 30 days in jail, generally speaking, and a special court-martial is handles cases with penalties such as up to a year in jail and a bad conduct discharge.
A General Court Martial Handles More Severe Penalties, Such as Life Imprisonment
If you go to a general court-martial, you can get up to life in prison or the death penalty.
Let’s say you go to a general court-martial. You’re entitled to an article 32 hearing. The commander reads you a charge sheet. He schedules an article 32 hearing. You go to the article 32 hearing. Evidence is presented against you. You have the right to cross-examination.
You have the right to ask for more evidence from the investigating officer. Then all of that investigation goes to the convening authority and the convening authority takes the investigating officer’s recommendation and evidence and makes the decision whether or not the case goes to court.
Interviewer: That sounds kind of unusual. On the outside, in the civilian world, it’s the police that they have to have reasonable suspicion that a crime is being committed and they’re the ones that decide whether to charge you.
In the military, the commanding officer is the one who has the power whether to decide whether to charge you or not?
Chris: Yes. Technically, any officer who suspects you of a crime can prefer a charge against you but that’s just strange. It never really happens.
In a Civilian Setting, the Police Bring Evidence to the District Attorney’s Office in Order for a Criminal Case to Proceed
However, in a local setting, the police write the report or initiate the investigation and it still goes to the prosecuting attorney’s office and they make a decision whether or not to move forward on the case.
In a Military Setting, the Commanding Officer Usually Consults With a Judge Advocate Before Proceeding with a Case
However, in this case, the commander, generally with the advice of the base staff judge advocate makes the decision whether or not to go forward with either a court-martial or some type of non-judicial punishment.