Some Comparisons Between Courts-Martial and Civilian Practice

• Author: By Robert Emmett Quinn
• Pages: 03

I. INTRODUCTIOS

Before Congress enacted the Uniform Code of 3lihtar.i Justice in 1960,' courts-martial were widely regarded in legal and lay cir-cle~as the archetype of summary and arbitrary proceedings. Al-though description of the military system as "drumhead justice" was overdrawn, there were indeed glaring deficiencies in the safeguards accorded an accused and in the attitudes of those administering the military criminal law system. In the supposed interest of furthering the military discipline of the command, a commanding officer did not hesitate to make known to the members of a court-martial, in advance of trial, his personal vieis8 either as to the guilt of a particular accused or as to the sentence that should properly be imposed. If he thought af the matter at ail, the commanding officer saw no incompatibility betis-een his conduct and the juridical doctrine of impartiality in the administration of criminal justice. Even military lawyers, although trained in civilian law schools, were so permeated with military philosophy that they engaged in the practice themselves to secure results they deemed desirable.?

Apart from not knoivinp iuhen, or whether, such extrajodicial influence had been brought to bear in his case, an accused did not even know what principles of law the court members actually considered in determming his guilt or innocence. Courts-martial used a ser\,ice ComDendium of substantive law and vractice as their

*Reprinted from 16 U.C.L.A. L. REI. 1240 (1968). Thi, article 16 cap?. righted and permmion far the publication or other use thereof may be granted only by The University of Califwnia, Lo% Angeles.

Although this mticle u._ written before the new MANUAL FOR Coums-Mm-IXL, KFITED STATES, 1969, and the MILITARY JUSILCE ACT OF 1868. the eomDarimne made in this article are even more d i d than before. in that most of the judicial decisions referenced herein have been incorporated in the new Manual and Code.

.*Chief Judge, Umfed States court af hIilirary Appealii AB., 1916,Broav Univeralty; LL.B., 1918, Hariard UniuerriLy; admitred to practice be.fare the courts of Rhode Island: fanner Judge of the Superior Court and Governor of Rh& Inland.

Act of 5 l a y 1960, eh. 169, 64 Sui 108 [hereafter called the Code and cited as UCMJ].

ZSee, e.g., Umted States Y. Guest, 3 U.S.C.M.A. 141, 11 C.1T.R. 141 (1953).

source for principles of law Army and Air Parce courts-martial use done compilation: Navy and Marine Corps courts-martial used a different one ' Each 1\88 regarded as the "Bible" of military law bl- the services in which It was used. and it was taken by the court

tary lair in effect before the Uniform Code. Analyzing the jundi-tal nature of courts-martial, Colonel Winthrop observed that in Dynes c. Hanii~'the Supreme Court held that these courts w r e not federal courts within the meaning of article 111 of the Constitution. He concluded that this decision meant that "courts-martial must pertain to the executive departments; and they are in fact simply instnmmta1,ties of the rsecutire poiie?' to enforce discipline in the armed farces. He further concluded that they were not "embraced in the proriaions of the sixth amendment to the Constitution" and \\ere "as much subject to the orders of a competent superior aa IS an)- military h d y or person."' Some contemporary students of military law seem to subscnbe to essentially the same vie>~s.~

Hawerer. these views have been rejected,' on both theoretical gromds and in practice, b>- the United States Court of Military

~~ 4 Sfrlctly speakmg, ri.e Am Force had ]ti own compilatmn, the MASUAL FORCO~RTE-?IIARTIAL.

L'S :IR FORCES

(19191. bur tb.ia U - ~ S merely an "adoption"

of :he Arrni-'~ I11h-u~ FOR COCRII-YARTIII, US. ARMY (19491. The text i:a:emer.t refers to :he latter The San'i Compenmum war NAIAL COURTS AZD BO.&RDS 119371 The Coast Guard also had B .Ilanuai, MAXUAL FORCO~.ILI-MI*RTIIL.

L'XITED STATES

COAST G C ~ U

(19491, but it was barieaiiy B ieitaTemenf of the l-mi'r guide. Upon ensctment of the Uniform Code of llilitarr d x r ~ e , ail these were replaced by the ~IAXLAL

FOR COURTS-MARTIAL

UIITEP Srrrs, 1951 [hereafter called the Manual and cited 88 YCM 19511

'61 U S 120 Hau i 65 1186ei.

late .Mt!ila~ Jz~stiee. A Cnticoi y Appeais, 34 NY.U.L REI. 861

resentatlie a i a long. lire Of eases

i 8

COlJRTS4ARTIAL

Appeals, the supreme couri of the milit61?. justice system, which was created by the Code.8

Persons in the military service are generally entitled to the rights granted 811 persons by the Constitution, both as defendants in criminal prosecutions and as individuals in a democratic society. The fifth amendment expressely exempts the military from proceeding by presentment or indictment of e grand jury, and other rights, such as trial by a ~omon-1a.w jury, are excluded by neces-sary implication. Differences of application of constitutional riyhts must also be recognized. Freedom of speech, for example, is not an absolute. The reasonableness of its exercise depends upon the presencg of many variabie factors. These factors diiTer in the military cummunitr from the ciriiian community, and these differences must be taken into account in considering whether a particular restriction upon the freedom to speak is or is not constitutionally va1id.O

For nearly two decades, the military justice system under the Uniform Code provided procedures and prescribed rafegLards for an accused's constitutional rights that were unmatched in the civilian courts. The explosion of constitutional doctrine in recent years, however, has resulted in legislative and judicial adoption by the civilian courts of many procedures already in effect In the miiitary. It can ahast be said that the civilian community was catching up with the military in the effective guarantee of constitutianai rights. Some procedures in the military system may ~Iways be more expansive than those in the civilian courts. Far example, in the military the accused in a general court-martial ease is entitled

z The United States Courr of Militan. Appeals cansmts of three judges appointed from civilian life by the President, with the advice and consent af the Senate. a i t h the exception of appliearians for extraordinary reilef, eee, e,#, United Sfatesv. Friseholi, 16 U.S.C.Y.A 150, 36 C.DI.R. 306 (15661, and petitiom far new trial in C Z ~

pending appeal, see UCUJ art 73. 10 U.S.C.$873 (1556), the eaurt has only appeallate junadietion. It must accept far re- V ~ V

B ease in which the sentence extenda to death or m whleh the accused ir a general or other flag ofdeer. All other appellate eases am preaented either by certificate from the Judge Adraeate General of rhe accused's armed force or by petition of the accused far grant of re~-ie-*.. The petition corresponds to cevtunan in the Supreme Court af the Ullited Stares. hot every accused can petition for grant of review because not erem court-martla1 conwetmn re. w u e d by a board of rev~ew A board of review considers only eases ~n whxh the Senrenee extends to B punitive discharge or to eonflnement to hard labor for one \..ear or more. UC3lJ art. 66. 10 U.S.C.

& 866 i1966i

OSee, e.g., United States V. Howue, 11 U.S.C.3L4. 165, 37 C..\I.R. 425(19611; United States V. Voorhees, 4 D S.C.M.A. 605, 16 C.hl.R. 83 (1554) See aiso Quinn, The United States Court oi .Military Appeals and Idnidual Xights m the .Military Service, 35 NOTRE

DAME L. REV. 491, 497 (1960)

before trial, as a matter of cnurde. to a COPY of at least the substance of the expected testimony of ewry prospective vitnees against him and to information as to every item of evidence in posseasion of the prosecution lihich may be used against him:' Even as recently liberalized, the Federal Rules of Criminal Procedure do not approach the openness of prosecution in effect in the military.

Currentlb-. courts-martial procedures and the federal cnmmal procedures me sufficientlr similar to make a cidian practitioner feel comfortable and knovledgeable in a court-martial case. Hon-n practice between the state and es between general practices ~nthe civilian courts and piocedures in the military system. Pron-sian for safeguard of constitutional rights can be expected, but milltar? law provides "something more. and something different." Some of these differences merit special attention in light of recent Supreme Court decisions conceining an accused's constitutional rights in a criminal proceeding.

11. OBTAISING ORAL ASD WRITTEN STATEXESTS FRO11 A SCSPECT OR ACCUSED

So much has been wirten and said about the Supreme Court's drr L.. Amona --that the constitutional conseodial interrogation" are prnhabls as familiai to

the geneial public as ther are to the legal profession. 1Iilitary courts responded to .ll;rnnda as quickly as the civilian courts. ' Hon-ever, the impact of Jlirnndn on the military investigative processes was less drzmnric and unsettling than its effect an civil-ian police procedures.

____

. Y

so

&ICY. 1951. '345

President ai :he Uri!ed to prescribe !he ' nroceo

e Code or sibrta

COURTS.YARTIAL

Three requirement8 of military law simplified the illiraada change in the preconditions to admitting into evidence oral OS written pretrial statements made by a suspect or accused. First, military law already required that every person suspected or accused of an offense be adrised, before questioning, that he had a right to remain silent, and that if he elected to speak what he said could be used against him in a...