Tuesday, February 23, 2021

Two cents plain

The Joint Service Committee on Military Justice is soliciting suggestions for changes in the Manual for Courts-Martial. Here is a link to the Federal Register notice. And here is what the Editor has just submitted:

I have three recommendations. 

First, the President should prescribe a burden of proof for nonjudicial punishment, applicable to all of the armed forces. The Code is supposed to be uniform across service lines and there is no reason for inter-service variation on this basic legal issue. 

Second, and relatedly, given the possible adverse effect of NJP on military personnel, and the fact that one service has been able to function perfectly well with the beyond-a-reasonable-doubt standard, that should be the standard for all services. 

Third, the President should promulgate a single set of rules of professional responsibility, or should direct the TJAGs to produce a joint document, applicable across the board. Again, there is no reason for divergent rules on this important subject.


  1. Thank you for the reminder. I welcome thoughts on the following:

    The Manual for Court Martial should be amended to require a unanimous panel to convict service-members of crimes.

    The Military Justice Act of 2016 took the initial step of requiring three-fourths of the panel to convict service-members of crimes (an increase from two-thirds).

    In 2020, the Supreme Court decided Ramos v. Louisiana. The Court concluded that the Sixth Amendment right to a jury trial requires a unanimous verdict to convict a defendant of a serious offense. The Court also noted that if the jury trial right requires a unanimous verdict in federal court, it requires no less in state court. Though the Sixth Amendment may not prohibit less-than-unanimous juries in the military context, the Manual for Court Martial should be amended to require a unanimous panel to convict service-members of crimes.

    The consequences of a criminal conviction under the Uniform Code of Military Justice are comparable to those of a criminal conviction in civilian courts. Service-members are subject to incarceration, fines, and inclusion on criminal registries. Collateral consequences are also similar and include, but are not limited to, impingement of constitutional rights (i.e., firearms) and reduced employment opportunity due to required disclosures. Additionally, service-members are subject to unique service-related consequences that their civilian counterparts are not subject to, such as reduction in rank, forfeiture of retirement, and loss of other benefits.

    “Military necessity” is no bar to affording service-members the protections of a unanimous jury. Hung juries and mistrials are a natural outgrowth of the criminal justice system. Given applicable rules, the Military Justice System is sophisticated enough to manage these occurrences.

  2. Gene, I agree with you 100%. I also agree with Richard. There is no excuse to not have unanimous verdicts in the military, and the military, like the civilians, can live with the occasional hung jury.

  3. Note that the JSS is only soliciting proposals for Manual changes. But that's no reason not to suggest changes that would require legislation.

  4. Gene,

    I was wondering about that as I was typing up the recommendation. That is exactly why I posted it for comment. Thank you. I will add a line about the change requiring legislation.


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