Can I hire a civilian attorney for a court martial?

Can I hire a civilian attorney for a court martial?

Facing a court-martial is a very serious matter that can affect your standing in the U.S. military, resulting in possible confinement, loss of pay, fines, and other consequential punishments. Are you hesitant, or perhaps fearful of the representation that you may receive from a military lawyer?   

If you are facing a court-martial, you want the best possible legal representation. Some military personnel likely believe that they do not have the right to representation from a civilian attorney since they are not facing crimes in a civilian court.   

Learn the facts about your rights to legal counsel when facing a court-martial, and the process of hiring the ideal experienced attorney with expertise in military law and court-martials.  

Why am I Facing a Court Martial?   

The United States Military does not charge servicemembers under statutes the same way as people are charged in a regular criminal court system. The civilian individual faces a criminal conviction and punishment by the courts if found guilty of a crime. Members of the U.S. Military face a court-martial rather than criminal court proceedings.  

Court martials are governed by:  

  • Rules for Court Martial  
  • Manual for Courts-Martial which details and expands on U.S. Military Law contained in the Uniform Code of Military Justice  
  • Military Rules of Evidence  

These apply to every member of the military, although the various branches also have some specific rules related to court-martials.  

Court martials are serious actions, with a potential conviction that is typically considered similar to either a misdemeanor or felony conviction in civilian courts. The Summary Court Martial is the lowest level of the three types of court-martial. The U.S. Army indicates in a Military Fact Sheet that its purpose is to resolve minor offenses through ‘a simple procedure.’  

The other two types of court-martials are more significant proceedings, and potentially carry convictions similar to a felony conviction in a criminal court if there is a finding of guilty in a General Court Martial. The Special Court-Martial is viewed as similar to a misdemeanor trial or proceedings. 

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Commanding officers typically bring the charges against the accused.   

When you face either of these types of court-martials, you have legal rights that you potentially are not aware of, or do not consider, possibly because of the stress or other emotional effects related to the court-martial. Do you know your rights related to legal counsel?  

Do I Have the Right to Hire a Civilian Attorney for a Court Martial?  

Some members of the U.S. Military likely assume that they only have the right to a military attorney. The defense counsel is assigned to you once charges are preferred, or brought, against you. Your counsel, or Judge Advocate, represents you during your court-martial.   

An important question to ask yourself is, ‘Do I really want a member of the U.S. Military representing me in court-martial proceedings, which are brought against me by the U.S. Military?’ One example for thought is the U.S. Marines Defense Services Organization apparent motto of, ‘Marines Defending Marines.’  

Another point for consideration comes from the U.S. Navy. When considering your right to an attorney, the U.S. Navy indicates that while an attorney of the U.S. Military may ‘provide advice and counsel’ during the investigatory phase, that military attorney will not be ‘detailed’ to your specific case until the actual charges are preferred against you. When a military attorney becomes ‘detailed,’ that is the same as having an attorney assigned to represent you in your case in civilian courts.  

Consider this fact that the military attorney does not represent you during the investigatory stage to your ability to hire, or retain, a civilian attorney to represent you. If a person is under investigation for a crime as a civilian, that person likely seeks legal counsel during the investigatory phase. You do not have the right to legal representation from a U.S. Military Attorney until both the informal and formal investigations are complete.   

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Do you want to let the investigations proceed with you possibly not having complete knowledge of what is going on, and not knowing if there are assurances that your rights are being protected during this traumatic time in your life?   

Benefits of Hiring a Civilian Attorney for a Court Martial

Hiring a civilian attorney does not mean that you call the first attorney that pops up in your search. You want a civilian attorney with extensive knowledge, experience, and specialized expertise in military law and court-martials. There are several benefits to hiring your own civilian attorney to represent you throughout the process.  

One benefit of outside counsel is that your civilian attorney becomes your primary counsel, and the military lawyer is then the co-counsel to the civilian attorney. Because you have the benefit of the primary civilian attorney representation, this likely alleviates any fears or apprehensions that you may have about adequate or fair representation.   

Civilian court-martial lawyers are often former members of the military and strive to provide the best possible aggressive defense from the moment they are hired to represent a service member facing a court-martial. Yes, you do have to pay for the civilian counsel, but consider the fact that a civilian attorney does not have a chain of command. Some military lawyers have little, if any, experience representing the accused in a court martial. Civilian attorneys often have many years of experience, and the specialized expertise, including knowledge of the most recent Amendments to the Manual for Courts-Martial.  


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