Criminal Justice News

Tuesday, November 05, 2013

Civilian vs Military Justice System: How do they compare?



By Lt. Col. Sheri Jones, 30th Space Wing Staff Judge Advocate

ANDENBERG AIR FORCE BASE, Calif. -- When I was in high school, before I learned that the military even had lawyers, I believed commanders imposed punishment on the spot without so much as attempting to get the other side of the story. I blame television! I now know that was totally wrong. But, in my own defense, I let myself be misled by Hollywood's portrayal of the military justice system where it seemed everybody ended up in the stockade without a hint of due process.

Fortunately, I quickly learned my impression was misinformed. What I now know for sure is that the military justice system guarantees servicemembers all the rights and privileges afforded to people facing prosecution in civilian courts. In fact, the Uniform Code of Military Justice ensures that servicemembers have more protections than civilians in many ways, including rights advisement and the pretrial investigation process.

Before I could understand how the UCMJ could possibly be more protective of a person's rights than the civilian justice system, I had to first learn when the military had jurisdiction over a service member, as opposed to the member being subject to the "downtown" court system. Unlike state criminal jurisdiction, which is based on the location where the alleged crime occurred, military jurisdiction sticks to the person, not the place. So any military member on active duty, no matter where she is located, is subject to the UCMJ.

One of the most notable differences between the two justice systems is when rights advisements are triggered. In the civilian system, Miranda warnings are given before a person is questioned about their possible involvement with a crime and when the person is in custody. In the military system, UCMJ, Article 31 rights apply before a person is taken into custody and when a person is suspected of committing an UCMJ offense. So, a service member under the military justice system is advised of her rights to an attorney and told what UCMJ violation she is suspected of committing, in most incidents, way before she would receive her Miranda warnings in the civilian system.

In spite of my early AMC schooling, I learned that the due process built into the military trial process ensures the accused's rights are protected. Although both systems include pretrial hearings, only the accused in the military's Article 32, UCMJ, hearing is allowed, through her attorney, to request witnesses and question them on the stand during the hearing. Also, all relevant evidence under the government's control, and reasonably available, will be presented at the Article 32 hearing. In a grand jury hearing, which is the civilian system's pretrial hearing, only the judge questions the witnesses and the government isn't required to present all their evidence.

From the trial itself through the appellate process, the military justice system provides fundamental due process guarantees that ensure fairness. The full truth of how, and to what extent, the military justice system zealously protects individual rights is a far cry from what I thought I learned from Hollywood. And, by the way, I word searched the UCMJ and couldn't find the word "stockade" anywhere!

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