Special Court-Martial Defense Lawyer

A Special Court-Martial is the intermediate level Court- Martial between Summary Court-Martial and General Court-Martial. A conviction is often compared to a misdemeanor conviction in the civilian legal system. Most commonly, a hearing will consist of a military judge, trial counsel (aka: “prosecutor”), defense counsel, and a panel of members – the “jury”.  

Pursuant to the Military Justice Act of 2016, which was implemented on 1 January 2019, the number of required members for a special court-martial panel is four officers. An enlisted accused may request a court composed of at least one-third enlisted members on the jury. Unlike civilian criminal trials which require a unanimous decision, in the military court-martial only ¾ concurrence by the members is required for a finding of guilt and for a sentence.  This means at least three members of the four person jury must agree on the finding of guilt and on the sentence awarded.  If less than three members concur on a finding of guilty, then the accused will be found “not guilty.”  Unlike most civilian criminal trials, there is no such that as a “hung jury” in the military court-martial process. 

Similar to federal district courts in the civilian community, sentencing is now segmented. Specifically, if an accused elects to have their case tried by a jury and the jury finds the accused guilty of an offense, the military judge must then decide the sentence unless the accused requests the jury decide the sentence.  Prior to the enactment of the Military Justice Act of 2016 on 1 January 2019, if an accused was found guilty of an offense it resulted in a single sentence for all the offenses for which the accused was found guilty.  However, subsequent to the enactment of the Military Justice Act of 2016 if a Military Judge conducts sentencing, the military judge will issue a separate sentence for each offense and specify whether the terms will run consecutively or concurrently.  However, if an accused chose to be sentenced by the jury that found the accused guilty, then the jury will issue a single sentence for all of the offenses for which the accused was found guilty.    

Maximum Punishment

The maximum punishment that could be awarded:

• Bad Conduct Discharge,
• Confinement up to 1 year,
• Hard labor without confinement up to 3 months,
• Two-thirds forfeiture of pay per month for up to 1 year, and
• Enlisted members may be reduced to the lowest enlisted pay grade.

Officers cannot be reduced in rank or receive a punitive discharge at a SPCM.

Judge Alone SPCM

Pursuant to the Military Justice Act of 2016, effective January 1, 2019, a convening authority can also refer an accused to a Judge Alone Special Court-Martial.  This is a new type of Special Court-Martial and if the case is referred to Judge Alone Special Court-Martial, then the accused will be tried and sentenced by a military judge alone.  In a Judge Alone Special Court-Martial, the maximum punishment that can be awarded is limited to confinement of no more than six months, and no more than six months of forfeiture of pay.  Additionally, a Bad Conduct Discharge cannot be imposed by the judge. Other lawful punishments may be imposed.

Your Right to Counsel

At a SPCM the accused has the right to be represented by a detailed military defense counsel, an individual military defense counsel (IMC) of their own choosing, if the IMC is deemed available by the IMC’s command, and the right to be represented by a civilian defense counsel of the accused own choosing and expense.

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