THE OKLAHOMA BAR JOURNAL 16 | FEBRUARY 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. civil courts in the military.46 A military judge is usually a senior judge advocate with proven experience in military criminal justice. THE PRELIMINARY HEARING (ARTICLE 32 HEARING) The Fifth Amendment right to a grand jury indictment, by its express terms, is not applicable to service members,47 just as it does not require an indictment by a grand jury in state courts.48 In place of the grand jury, the military provides that an individual may not be tried by a GCM unless there has been a thorough investigation.49 The Article 32 preliminary hearing has been compared to a civilian grand jury investigation50 and bears a resemblance to a federal preliminary hearing and Oklahoma’s preliminary hearing in the district courts.51 The Article 32 preliminary hearing accomplishes several things. Among them is the protection of the service member from baseless charges,52 early defense discovery53 and assisting the convening authority in determining whether to refer (send forward) charges to a GCM, recommend dismissal or utilize a lesser disposition (a letter of reprimand, etc.). COURTS-MARTIAL PRACTICE AND PROCEDURE A GCM is very similar to a civilian criminal trial. The military counsel (the prosecution and the assigned defense counsel) appear in uniform, but the military judge wears the traditional robe.54 As in civilian courts, a meeting is held with the judge and opposing counsel for a pretrial conference55 to coordinate the trial. These conferences are held by phone or in person but are not used to resolve contested issues. Contested motions and formal arraignment are held on the record in the courtroom in “Article 39(a) sessions.”56 These sessions are held outside the presence of the “panel” (jury) members but are open to the public. At the arraignment portion of the Article 39(a) session, the accused must state on the record their plea, choice of counsel and the forum to decide their case (judge-alone, panel with all officers or a panel with a mixture of officers and enlisted). In military courts-martial, accused service members do not have a Sixth Amendment right to a trial by jury.57 As considered an “Article I court,” Congress put forth the qualifications for service by military members on courts-martial panels in the 1920 Articles of War,58 which Congress then incorporated into the UCMJ as Article 25 upon its enactment in 1950.59 The military jury “panel” has been described as a “blue ribbon” jury with a guarantee of various viewpoints not necessarily found in civilian courts.60 Whereas an Oklahoma civilian jury on a state case or a federal jury venire is selected by voter registration rolls or lists of actual voters,61 the convening authority for a specific military installation is who initially selects military court panel members.62 Selection to “jury service” as a panel member is based upon statutorily required age, education, training, experience, length of service and temperament. An accused has the right to have their case decided by either a judge alone or a “panel.”63 The panel members are also members of the military (peers from the same community) appointed to this special duty by the convening authority. The panels selected are normally mature and responsible officers with long military command experience. If the accused is enlisted, they are also entitled to either have a panel of all officers or a panel consisting of one-third of enlisted personnel.64 An accused and their counsel will have the opportunity to voir dire the panel members for any prejudices and can challenge members for cause or use the one peremptory challenge to exclude any member for any reason. While voir dire may occur with the removal of a panel member pursuant to a peremptory strike or for “cause,” that panel member will not be replaced, and the panel will be reduced in numbers. A quorum can be declared with as little as five members sitting for a general court-martial and three members for a special court-martial. The trial on the merits portion of the case is much like a civilian case. After a selection of panel members (if not a judge-alone trial), both sides may give opening statements, present their case with witnesses and evidence, cross- examine witnesses, call rebuttal witnesses and give closing arguments. Also, like civilian courts, the rules of evidence do apply. Referred to as the Military Rules of Evidence or informally as “MREs,” they mirror the Federal Rules of Evidence (FRE)65 with minor variations. With the exception of a sentence of death, a court-martial verdict of either guilt or innocence may be less than unanimous.66 Therefore, military jury panels at a GCM may consist of only five members.67 Sentences of death require a unanimous panel vote,68 sentences of more than 10 years of confinement
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