You do not just end up in front of a Military Judge on a Monday. A lot of things have to happen before you ever get to the actual trial. The entire lead up before that is all part of the Court Martial process in the UCMJ. We will use the scenario from the Sample Case to break those steps down. You can click on the Court Martial Timeline to see generally how long the Court Martial Steps take.

SPC Smith is our Fort Liberty Soldier from the scenario. He will have two big allegations brought against him: domestic violence and sexual assault.

• STEP 1 – Alleged Crime Occurs

On July 31, 2023, SPC Smith allegedly commits an act of domestic violence against his wife. She does not report it, so no investigation or Court Martial steps start. On December 31, 2023, SPC Smith allegedly sexually assaults PVT Amy Sanchez. Since she made an unrestricted report sexual assault report, her command and CID must investigate this matter

• STEP 2 – Criminal Investigation

Just because a crime allegedly occurred in July 2023, the Court Martial process was not started. It is reporting the allegation to the command or law enforcement that triggers the criminal investigation. The criminal investigation into SPC Smith can take anywhere from a month to over a year. A criminal investigation can be occurring with or without SPC Smith knowing. The criminal investigation is where the servicemember will be interviewed by military or civilian law enforcement, put on some sort of legal hold during the investigation, and likely issued a Military Protective Order or No Contact Order. This may be the most painful process because you can know you are being investigated, but not know specifically what you are being investigated for.

• STEP 3 – Criminal Charges (Preferred Charges)

Criminal charges in the military are changing because of the new Office of the Special Trial Counsel. However, the actual steps are still the same. For SPC Smith and the alleged domestic violence and sexual assault allegations, his case would have two parts for the charges. The first part is the preferral. This is where the servicemember first sees the actual criminal allegations against him, including dates and locations of the supposed crime. This is also where someone in the command or prosecutors’ office would swear to the charges. After that, SPC Smith would be brought into a legal office or the command’s office, placed at attention, and have the charges against him read out loud. From there, SPC Smith would be told to contact a military defense lawyer.

• STEP 4 – Military Defense Lawyer

After the preferral of charges, the servicemember is told to contact a military defense lawyer. Military defense lawyers are like civilian public defenders in that they cannot represent someone until that person is officially charged with a crime. Each service branch has its own title for its military defense lawyer office. The Army has Trial Defense Services (TDS). The Navy has Defense Service Office (DSO). The Marine Corps has the Defense Services Organization (DSO). The Air Force has Area Defense Counsel (ADC). However, like the civilian world, a servicemember can already hire a civilian lawyer before they are even brought in for questioning by law enforcement. Statistically, the best outcomes for cases are where someone hired a private lawyer before charges were ever brought against them. That is because a private lawyer can do the talking for the servicemember and already start working negotiations to try to resolve the case without charges ever being brought against servicemember.

• STEP 5 – Article 32 Hearing

Due to SPC Smith’s charges being domestic violence and sexual assault, the case must have an Article 32 hearing. In the civilian world, this would be called a probable cause hearing. SPC Smith and his lawyer can choose to waive the Article 32 hearing. If they do not, the prosecutors would present their most basic facts to a Preliminary Hearing Officer (PHO), who is a JAG. SPC Smith and his lawyer would be present for the Article 32 hearing and can make a defense there, to try to knock the case out at that stage. The PHO would then determine if there exists enough evidence to continue the Court Martial process against SPC Smith. However, even if the PHO says there is not enough to go forward with the case, the prosecutors and the command can still decide to go forward with the case.

• STEP 6 – Criminal Charges (Referred Charges)

Once the prosecutors or command decide they still want to continue with charges against SPC Smith, he will be handed the referred charge sheet. The charges are the exact same as the preferred charge sheet. The only difference is that there is now someone very high in rank saying this matter is officially going to a Court Martial.

• STEP 7 – Arraignment

Arraignment is finally when SPC Smith and his lawyer would be in a military courthouse and in front of a Military Judge. The criminal defense lawyers and the prosecutors would have already exchanged dates that work for both sides for the Military Judge to create a Pretrial Order (PTO). That Pretrial Order will be issued shortly after the arraignment. SPC Smith will be in his dress uniform for the arraignment and all future court dates. The legal significance of the arraignment is that the charges are now officially in front of a Military Judge, so if SPC Smith tries to flee, there can be a trial in his absence, and he will have to serve the sentence he is given when he is eventually caught.

• STEP 8 – Litigation

Even though SPC Smith has been in court once already for his arraignment, he will still have more court dates before the Court Martial. That is because the Pretrial Order put forward dates for the prosecution and defense lawyers to exchange documents for what is called discovery. SPC Smith and his lawyer will not go to court for document exchanges during discovery. However, SPC Smith and his lawyer will be in court for motions. Motions are where the prosecution and defense lawyers disagree about things like evidence that can be allowed at trial, so they argue before the Military Judge for the Military Judge to issue a ruling on how that evidence can or cannot be used at trial.

• STEP 9 – Trial

The culminating event from everything, from the July 2023 incident with his wife to the December 2023 night out with PVT Sanchez all gets decided at the trial. This is what everyone thinks of when they hear Court Martial. SPC Smith will have the option between a Military Judge to hear his case at trial or a Military Member Panel, which is just the UCMJ way of saying “jury.” All of the steps before this are what are so crucial to the actual trial. The trial can last anywhere from a day to multiple weeks. It all depends on how many witnesses and how evidence there is for the alleged crimes. At the end, SPC Smith and his lawyer will have a result.

• STEP 10 – Post-Trial

If SPC Smith is found not guilty of the charges brought against him, he is free to return to formation. The flag that was put on him must be removed. The Military Protective Order or No Contact Order will also be removed. However, if SPC Smith is found guilty of anything, the matter will immediately go into sentencing. The Court Martial process is not like the civilian criminal defense world. In the civilian sector, if someone is found guilty, it may be months before they return to court for sentencing. In the military, if a servicemember is found guilty, the sentencing phase of the Court Martial is done in that same trial week period.