Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Military Justice: An Oxymoron?

The military justice system over the years has been subject to a good deal of criticism, most of it undeserved.  In terms of their treatment of criminal defendants, the military justice system has many advantages and some disadvantages over Minnesota’s criminal justice system.

The recent tragic news from Fort Hood and the ongoing debate about whether to try Guantanamo detainees in civil courts or before military commissions have given the military justice system a rare thrust into the public eye.  Apart from those lawyers who may have experience as JAG officers, few can claim any familiarity with the system and, truth be known, this lack of familiarity has often bred misunderstanding—if not undeserved contempt.

The military justice system has gotten a lot of criticism over the years because many believe the system is heavily skewed in favor of the chain of command and against the accused soldiers. While a commanding officer does have broad authority to determine whether to pursue charges, and if so, what charges to pursue, in many instances soldiers facing military justice actually have more rights and are treated more favorably than their counterparts in civil court.  In fact, F. Lee Bailey, a famous criminal defense lawyer, once said that if he were accused of a crime, he would rather be tried in a military court than in any other system of justice because of the protections afforded the military accused.

To help allay what misunderstanding may exist and equip Minnesota lawyers to better understand proceedings currently in the headlines, here’s a brief overview of how selected issues in criminal law are handled in the military justice system compared to their treatment under Minnesota law.

Advantage, Military
As Bailey observed, in certain respects the accused soldier enjoys distinct advantages by comparison with his civilian counterpart.  Consider the following:

Informing Defendant of Rights 
As soon as a soldier is even suspected of an offense, he has rights unlike those in Minnesota courts.  She may not be interrogated by the police without first being informed of: the nature of the accusation, her right to remain silent, and the fact that any statements she makes may be used against her.1 These warnings are called the “Article 31 rights” under the Uniform Code of Military Justice (UCMJ). These warnings must be given to soldiers even if they are not in custody. Contrast that with Minnesota where a suspect need only be read his Miranda rights if he is in custody and is subjected to interrogation.2

Soldiers must also be told they have a right to have a lawyer present during questioning in two situations: when they are in confinement or as soon as the case has been preferred (charged).3 Unlike a civilian in Minnesota, a soldier who is about to be interrogated by military police while out of custody must be informed of her right to have a lawyer present during the interrogation once the case has been preferred (charged).4 In Minnesota the right to a lawyer does not attach until the defendant has made his first appearance in court, and the police are not required to advise out-of-custody defendants about having a lawyer present.5

No-Cost Right to Counsel
Every soldier appearing before a special or general court-martial has a right to have counsel appointed free of charge; a soldier can even request a specific military defense counsel, and that request may be granted to the soldier if that counsel is “reasonably available.”6 In Minnesota only indigent defendants are entitled to the services of a public defender free of charge, and the defendant does not get to choose who is assigned.7

Pretrial Investigation
No case may be referred to a general court-martial (any crime punishable by more than one year) unless it has been fully investigated and there has been a contested pretrial investigation called an Article 32 hearing.8  The General Court-Martial Convening Authority (GCMCA) appoints an investigating officer to conduct this hearing.  At the hearing the defendant has a substantial number of rights: the right to be present, the right to counsel, the right to confront and cross-examine witnesses, the right to call witnesses and to present evidence in his defense.9 This hearing is open to the public unless there is good reason for it to be closed.  While the GCMCA is not bound by the decision of the investigating officer,10 this hearing provides the accused with a great opportunity to obtain additional discovery through witness testimony, to lock in the testimony of the witnesses for later impeachment at trial, and to assess the overall strength of the government’s case.  This hearing, which is greatly beneficial to the accused soldier, is almost never waived unless there has been a plea negotiation.

This unique military pretrial hearing has no counterpart in Minnesota; the preliminary hearing, which had some similarities to this procedure, has long been abolished in Minnesota.  The grand jury system is the closest thing we have to an Article 32 hearing but it is rarely used except in cases involving first-degree murder where it’s required.11 When the grand jury is convened, the defendant has no right to be present and has no rights with respect to the presentation of evidence.  The hearing is closed12 and the prosecutor presents whatever evidence she deems appropriate (although there is later review by the trial court to ensure some degree of fairness).  A prosecutor is bound by the grand jury’s decision not to indict a defendant.13

Plea Negotiations
One of the biggest advantages a soldier has in the military justice system is in the area of plea negotiations.  In essence, a soldier receives two sentences and gets the benefit of whichever sentence is more lenient.  The defendant often enters into a pretrial agreement with the convening authority (through counsel for both sides).  This agreement, called a “quantum,” usually involves a negotiation for a specific amount of time in custody as a part of the sentence.  Once there is a signed agreement in writing, this document is put aside and the defendant is then entitled to a sentencing hearing before a judge or panel members where the defendant can call witnesses, present evidence, and testify in his own behalf either by giving a sworn or unsworn statement.14 Once both sides have presented evidence and the sentence is announced, the judge then takes out the “quantum,” compares the two sentences, and the defendant is entitled to the lesser of the two sentences.15 Minnesota, like every other state, gives a defendant no such advantage.

Production of Witnesses
In the military the trial counsel is responsible for producing all witnesses, including defense witnesses, if they are reasonably available.16 In Minnesota defense attorneys are responsible for subpoenaing and making their own witnesses available to testify.17 While this may seem like a small point, an over-worked public defender system often has great difficulty producing important defense witnesses, and this can have an obvious detrimental effect on the outcome of the defense case.

Jail Credit
In Minnesota, a defendant gets day-for-day jail credit for any time spent in pretrial confinement, i.e., jail (electronic home monitoring also constitutes confinement).18 In the military, not only can a defendant get jail credit even though she is not in pretrial confinement, but she may also get additional credit when the government violates her rights.  A defendant is entitled to day-for-day credit for any “pretrial restriction that is tantamount to confinement.”19 Factors that might trigger this credit include: restricted access to certain areas; limited access to visitors, telephones, recreation facilities, entertainment, civilian clothing, or personal property; being placed in physical restraints; escort requirements; special duty requirements or assigned duties, and other restraints.  In addition, a judge may grant additional day-for-day administrative jail credit when there is an abuse of the rules regarding pretrial confinement, e.g.: failure to get the suspect timely military counsel upon request;20 failure to notify the commander within 24 hours of the soldier’s confinement;21 failure to review the decision to order pretrial confinement within 48 hours and again within seven days;22 and failure by a military judge to conduct timely review of pretrial confinement.23 Trial counsel are punished (and the defendants are rewarded) for the government’s failure to follow proper procedures.  Lastly, a judge may order additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances; this provision applies even to soldiers who are not in pretrial confinement.  Jail credit may be granted in accordance with Article 13 of the UCMJ and is designed to remedy a commander’s misuse of pretrial punishment (e.g., making a soldier clean a latrine for two weeks, stand at attention for hours at a time, or be subjected to public humiliation or degradation).  These mechanisms for granting additional credit are designed to deter pretrial punishment or violation of procedural requirements.24

Post Trial
After conviction and sentencing, the convening authority has the inherent authority to exercise leniency by changing the sentence in any way that results in more favorable treatment for the soldier.  A convening authority may remit, suspend,25 or dismiss certain charges; change a finding of guilty to a finding of guilty of a lesser-included offense; set aside a finding of guilty and dismiss the specification and charge; direct a rehearing;26 disapprove a legal sentence in whole or in part, or mitigate the sentence and change a punishment to one of a different nature;27 defer a sentence to confinement;28 order a rehearing as to some or all offenses for which findings of guilty were entered and the sentence, or just the sentence.29 A convening authority can modify or change a sentence for any reason whatsoever.30 A convening authority even has the right to approve a lesser sentence in cases requiring mandatory punishment.31 There is really no counterpart in Minnesota other than granting a motion for judgment of acquittal, , granting a new trial, or vacating a judgment and dismissing the case.32

The military protects its soldiers in the appeal process as well.  Every conviction resulting in dismissal of an officer, confinement of the accused for one year or longer, the death penalty, or a punitive discharge (dishonorable or a bad conduct discharge) is appealed as a matter of right; this includes all guilty pleas.33 Every defendant gets a military appellate lawyer at no cost.  The appeal process is lengthy and there are significant requirements for the military justice (prosecution) team.  Failure to strictly follow these procedures can result in the appellate courts taking favorable actions for the accused, like dismissing counts, remitting portions of the sentence, or other action.

In Minnesota only first-degree murder convictions are automatically appealed to the supreme court.34 Defendants have a right to appeal other cases after a conviction, but as a practical matter, many cases are not appealed.  It is also very rare to appeal a conviction based on a guilty plea.  A defendant has a right to appeal any felony conviction.35 Other appeals are discretionary with the court of appeals.36 There is no right to a free appellate lawyer.  If a defendant is indigent and wants a free lawyer, she must apply for the services of a state public defender.37

Advantage, Minnesota
As the foregoing discussion demonstrates, an accused soldier has advantages in the military justice system; nevertheless, there are some good reasons people are critical of this system—and might prefer Minnesota justice—and to these we now turn.

There is no right to bail in the military but there are a number of alternatives to the decision to place a soldier in pretrial confinement, including: 1) placing conditions on the liberty of the accused (directing the soldier to do or refrain from doing specified acts, e.g., orders not to go to the scene of a crime or to stay away from the victim); 2) restriction in lieu of arrest (orders directing a soldier to remain within specified limits, e.g., restricted to barracks (a person in this status usually performs full military duties); and 3) arrest (ordering a person to remain within specified limits; a person in this status does not perform regular military duties).38 When a soldier is placed in pretrial confinement, that decision is reviewed by the company commander, a magistrate, and a military judge.39

In Minnesota there is a constitutional right to reasonable bail.40 When a defendant is placed “in confinement,” that usually means a detention facility.  A defendant also may be placed on electronic home monitoring wherein he may be required to remain in his home except for specified periods of work, school, etc.  Defendants also may be conditionally released.  Such conditions may include: no contact with victim, no use of alcohol or drugs, random testing, SCRAM bracelet, geographical restrictions, or other constraints.41

When the military convening authority negotiates a plea with the defendant soldier, trial counsel almost always requires the defense to enter into a written “stipulation.” This document, which is prepared by the trial counsel, is oftentimes quite detailed, laying out very specific details of the crime along with aggravating factors of the offense and the offender that make the crime seem as serious as possible and the offender fully culpable.  If the defendant does not agree to accept the stipulation (with few changes), the trial counsel can withdraw the negotiated plea.

Once the stipulation is accepted by both parties trial counsel presents this document at the sentencing hearing in support of the sentence recommendation. The stipulation serves several other purposes as well: it can be used during the guilty plea (providence inquiry) to solidify the factual basis of the plea and during the appeal, if necessary.42 In Minnesota there is nothing comparable to an offer to stipulate.  The defendant usually enters a bare-boned factual basis for the plea, and a defendant is not required to enter into stipulations regarding the seriousness of the offense or his less-desirable qualities.

Jury/Panel Composition
The convening authority (CA), who is a division or brigade commander, is the person who selects the court-martial panel.  She is the same person who decides to send a case to a court-martial (she has the authority to dismiss the case or accept any kind of plea negotiation).  This is probably the aspect of the military justice system that is most heavily criticized because it certainly has at the very least the appearance of being unfair.

Critics contend that a CA is inherently biased, wants the defendant convicted, and will therefore pick a panel that is more prone to convict.  The report of the Cox Commission, which was chaired by Senior Judge Walter T. Cox III, formerly of the Court of Appeals for the Armed Forces, stated, “There is no aspect of military criminal procedures that diverges further from civilian practice or creates a greater impression of improper influence, than the antiquated process of panel selection.”  As a general rule, however, the CA does not know most of the soldiers he picks to serve on the panel; many of them come from brigades or battalions whose soldiers he has never met.  In addition, the rules mandate that the CA pick the best qualified soldiers based upon criteria that include age, education, training, experience, length of service, and judicial temperament.43 There are also strict prohibitions against convening authorities or commanders unlawfully influencing the court-martial process; this process is carefully examined by the military appellate courts.44 There can be little doubt that Minnesota’s system of selecting jurors from a random cross-section of the community is a fairer system.

Minnesota also gives the defense more peremptory challenges: the defense gets five and the state gets three (except for first-degree murder where the defense gets 15 and the state gets nine).45  In the military both the trial counsel and the defense are entitled to one peremptory challenge.46

If you look at the votes required to return a verdict of guilty, it’s harder to convict a defendant in Minnesota.  In the military it only takes two-thirds of the members to vote for guilt.47 The only exception is a capital case where the vote of the members of the court-martial must be unanimous.48 In Minnesota a jury’s decision must be unanimous in all criminal cases, and Minnesota does not have capital punishment.49

Minnesota sentences the vast majority of its defendants to probationary terms, usually with some period of workhouse time.50 The military does not even have a system of probation.  If a defendant is sentenced to incarceration, she serves the time unless the convening authority suspends or defers it.51


Despite the sometimes-deserved criticism leveled against the military justice system, a soldier actually has additional important rights and advantages in the military that defendants simply do not have when charged with crimes in Minnesota courts. Both systems strive to ensure justice for the accused, however heinous the crime, and in that we can all take pride.

1 Military Rules of Evidence (MRE) 305 (c).
2 State v. Tibiatowski, 590 N.W.2d 305 (Minn. 1999).
3 Military Rules of Evidence (MRE), Rule 305 (c).
4 MRE 305 (d)(1)(B); 305 (e)(2).
5 State v. Clark, 738 N.W.2d 316 (Minn. 2007).
6 Rule for Courts-Martial (RCM) 506; MRE 305 (d)(2).
7 Minn. R. Crim. P. 5.02 Subd. 1 (1); Minn. Stat.§611.14.
8 RCM 305.
9 RCM 405.
10 RCM 405 (Discussion).
11 Minn. R. Crim. P. 17.01.
12 Minn. R. Crim. P. 18.08.
13 Minn. R. Crim. P. 18.03, 18.07; Minn. Stat. §628.41.
14 Rule 1005 (c) (2).
15 RCM 910 (f)(3).
16 RCM 703 (c).
17 See Minn. R. Crim. P. 22.01.
18 Minn. Stat. §609.145 Subd. 2; Minn. R. Crim. P. 27.03 Subd. 4 (b).
19 U.S. v. Mason, 19 M.J. 274 (C.M.A. 1985).
20 RCM 305 (f).
21 RCM 305 (h).
22 RCM 305 (i).
23 RCM 305 (j).
24 U.S. v. Suzuki, 14 M.J. 491 (C.M.A. 1983); this is now incorporated into RCM 305 (k).
25 (RCM 1108).
26 RCM 1107 (c).
27 RCM 1107 (d).
28 RCM 1107 (d)(3).
29 RCM 1107 (e).
30 RCM 1107 (c) and (d).
31 RCM 1107 (d) (2).
32 Minn. R. Crim. P. 26.03 Subd.17 (judgment of acquittal); Minn. R. Crim. P. 26.03 Subd. 1 (granting new trial); Minn. R. Crim. P. 26.03 Subd. 2 (vacating judgment and dismissing case).
33 Army Regulation 27-10.
34 Minn. R. Crim. P. 28.01 Subd. 1.
35 Minn. R. Crim. P. 28.02 Subd. 2(3).
36 Minn. R. Crim. P. 28.02 Sub. 3.
37 Minn. R. Crim. P. 28.02 Subd. 5 (1).
38 RCM 304.
39 RCM 305.
40 Minn. Constitution, Article 1, Sec. 5; Minn. R. Crim. P. 5.05.; Minn. Stat. §629.53.
41 Minn. Stat. §609.135 Subd. 1 (2) (b).
42 See RCM 811.
43 Article 25, UCMJ, and RCM 502.
44 RCM 104.
45 Minn.R. Crim. P. 26.02 Subd. 6.
46 RCM 912 (g).
47 RCM 921 (c)(2)(B).
48 RCM 921 (c)(2)(A).
49 Minn. R. Crim. P. 26.01 Subd. 1 (5).
50 Minn. Stat. §609.135.
51 RCM 1101 (c); 1107 (d); 1108.

 is judge of Hennepin County District Court and a lieutenant colonel in the JAG Section of the 34th Infantry Division, Minnesota Army National Guard.  He recently returned from a deployment to Iraq.

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