The Differences Between a Military Criminal Defense Attorney & Civilian Defense Lawyer
Here are three key ways military criminal defense and civilian criminal defense are different:
- A completely different set of laws. If you are a Colorado civilian charged with a criminal offense, those charges will be based on crimes outlined in either the Colorado Criminal Code or federal criminal law. If you are a member of the military and are arrested and charged with a serious crime, you will be charged pursuant to a completely different set of laws: the Uniform Code of Military Justice (UCMJ). The UCMJ establishes rules, procedures, and punishments that aren’t the same as they are under civil law, and the same goes for the rights that are afforded to the accused in civilian criminal trials.
- A completely different court system. While certain minor offenses committed by military members – such as traffic violations – may still be heard by the same courts that handle such matters for civilians, more serious crimes, violent crimes, and crimes against the military (such as desertion or mutiny) will be prosecuted before a military court known as a court-martial. A court-martial can be like a civil criminal trial in many respects – a judge, a jury, lawyers for the prosecution and defense presenting evidence and arguments. But the judge and jury are members of the military, and certain rules that apply in civilian trials – such as the right to 12 jurors or the requirement for a unanimous verdict – do not apply in a court-martial.
- Different types of trials. In civilian criminal court, there are two main types of trial: a jury trial or a bench trial (a trial with a judge only and no jury). There are three unique types of court-martials, however:
- Summary court-martial. This type of proceeding is reserved for minor offenses, only applies to enlisted personnel, and there are limits on the maximum punishments that can be imposed. A commissioned officer (not necessarily a military judge) presides over a summary court-martial, and unless you are in the Air Force, a free defense lawyer will not be provided.
- Special court-martial. For mid-level crimes, a special court-martial is heard before a military judge, prosecuting and defense attorneys, and a panel of at least three military members. Accused enlisted personnel can request that at least a third of the panel charged with deciding their fate be made up of enlisted members, and they can also ask that there be no panel at all such that the judge alone will decide their case.
- General court-martial. Those charged with the most serious offenses – including murder, rape, robbery, and other violent crimes - will face a general court-martial. Similar in structure to a special court-martial, the punishments that can follow a conviction in a general court-martial can be severe, up to and including the death penalty.
For special and general courts-martial, the accused service member can choose to be represented by either a free military lawyer and/or a civilian lawyer who they pay for. Military lawyers are akin to public defenders in that they often have huge caseloads which may limit the amount of time and attention that they can pay to each case. Because of this, and because a civilian lawyer can work with an appointed military lawyer to prepare the accused’s defense, many military members choose to hire a civilian criminal defense lawyer who can devote substantially more effort to their case than a military attorney alone could.