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Archive for the ‘Military Law’ Category

Choosing a lawyer for your military DUI

Saturday, June 14th, 2008

While no one sets out to get a DUI, tens of thousands of people each and every year find themselves with court dates to explain what exactly happened that night on the road. If you are a member of the military, it can be even more difficult to beat the rap on a DUI. Here are a few things you will need to know to get through your military DUI allegation in one piece.

Finding a lawyer who understands the differences between the way a civilian court tries a DUI and the way a military court tries a DUI is absolutely vital. Everything from the way a DUI is judged to the way it is tried is different in military court. It is important that you understand the rules and the differences ahead of time so that you can quiz your lawyer about the differences in style. Here are just a few of the main differences:

Most military courts will use their state’s blood alcohol level guidelines to judge if you were, in fact, drunk at the time you were pulled over, or at the time of your accident, but they don’t have to. A military court has the legal right to simply “guess’ that you were impaired by alcohol even if your blood alcohol level wasn’t over that magical, illegal line. It is frustrating, but that’s the way the system works so you need to understand this going in.

While a DUI charge can take months to move through the antiquated civilian court system, it can seemingly fly through the military court system at an incredible rate. That is why it is so vitally important that you find a lawyer as soon as your DUI happens. Don’t wait a week or even a day, start trying to find one the next morning.

A military DUI can essentially put the breaks on an otherwise promising career. Depending on the branch of the military you are in and the response from your commanding officer, you may end up being completely cleared of all charges, and still face severe penalties that could include being frozen at your current rank for the rest of your career. There have been recorded cases of a DUI being tried in civilian court and such penalties being levied by a soldier’s commanding officer. These penalties may sound outrageous and absurdly unfair but they are a fact of life if you get arrested for DUI while a member of the military.

Finally, the sentencing aspect of a military DUI court case is also completely different than that of a civilian court. For most crimes, a military court has no limit on the sentencing they can hand out if you are convicted. This is an important aspect that everyone who goes before a military court needs to keep in mind.

As you can see, having a lawyer who understands the difference between civilian courts and military courts is extremely important to the success of your case.

How military law differs from criminal law

Saturday, June 14th, 2008

Thanks to hit television shows like JAG, which lasted an astonishing ten full seasons on the air, more people today have a better working knowledge of how the military criminal court works than ever before, but it would be foolish to assume that everything we saw on a television show is, indeed, accurate. Let’s take a look at just a few of the differences between a military court and a civilian court and see which style of justice is often faster and fairer.

Before we start, there are times when the two jurisdictions can fight over trying a case. If a soldier lives on an American military base within the United States and commits a crime outside of his or her air base, the state or federal authorities can step in and claim the right to prosecute and try the case, but since the military is such a powerful branch of the federal government, in most cases, if they wish to try a case involving a member of the military in their own courts, they are able to.

One question many people ask is if a civilian, or someone who is a citizen of the United States but not a member of the military, can be tried in a military court instead of a civilian court. Until very recently, the answer was no, but due to provisions in the Patriot Act that created military prisons in places like Guantanamo Bay, Cuba, American citizens and citizens from other countries are now being tried in these military courts. The legality of these trials is under much speculation and it is thought, and hoped by many, that once the current administration leaves office that these trials will be ended.

One major difference between the military court system and the civilian court system is the selection of the jury. As most of us know, the criteria for selecting a jury for a civilian trial is fairly loose. You simply receive a jury notice in the mail, show up and you have a chance of being picked or not. In a military court, the criteria are much stricter. Most military juries are made up of commissioned officers who are often highly trained, highly intelligent and highly respected. Most observers agree that the military court version is far superior to the civilian court style.

There are also no hung juries in military courts. A hung jury is when a jury that needs unanimous consent to convict or clear a defendant can’t decide one way or the other. In most cases, a mistrial is declared and the trial starts over from scratch. Some cases have experienced multiple trials that all end up in hung juries for various reasons. In military courts, hung juries are impossible since you only need two thirds of a majority for any decision or verdict to be reached.

These are just a few of the main differences between criminal law in the United States and military law.

JAG

Saturday, June 14th, 2008

While millions of people all over the world are familiar with the television show of the same name, the Judge Advocate General, or JAG, is the judicial branch of the US Military that presides over each and every branch of the US military, from the air force to the army to the coast guard. The Judge Advocate General is responsible for enforcing the Uniform Code of Military Conduct, which is the criminal law code that members of the military follow. Violation of the UCMJ can result in disciplinary action up to and including a general court martial that could result in death for the most serious offences such as treason. Let’s take a look at how this fascinating military branch works.

Not only does the JAG prosecute crimes in the military, they also help to defend those accused of crimes. Much like civilian courts, if you can not afford to have your own lawyer in the case of a general court martial, one will be provided for you. In other types of court martial cases, such as summary court martial cases, you don’t need a lawyer of your own since the judge advocate works as both your defense and your prosecution.

The JAG also provides a wide range of law services to members of the military all over the world. If a member of the military is accused of a crime in a foreign country and the local law system demands that the soldier stand trial, their lawyer will be provided by the JAG at no cost to them. They can also assist members of the military through other legal troubles such as divorce or even with something far more basic like an off-base traffic ticket or parking violation.

While many of sat on the edges of our seats during the ten year run of the hit television show JAG, the overwhelming majority of cases tried in military courts aren’t for general court martial cases. There are two other kinds of court martial cases that are tried on a regular basis for far less serious crimes. They are known as summary court martial cases and special court martial cases.

With a special court martial case, the JAG actually has jurisdiction over civilians depending on where the crime was committed and what the circumstances were when the crime happened. Special court martial cases are considered the “medium” level of seriousness, with general court martial cases being the most serious and summary court martial cases being the least serious. In an interesting twist, a soldier can actually request a judge trial without a jury if he or she chooses so.

With a summary court martial, the system if far more streamlined. There is one judge advocate who serves as both the prosecution and the defense. Cases are often heard and tried much, much quicker than they are in civilian court, as well. The accused even have the right to refuse this type of court martial and they will be “upgraded” to a special court martial, instead.

Military law and your rights

Saturday, June 14th, 2008

If you have recently joined the military, you may not be aware that the Uniformed Code of Military Justice is the law of the land. It supersedes state and federal law for members of the military, and although civilian law and military law are very similar in many ways, they are different and it is important that you understand your rights as an individual. If you should find yourself in a situation where you are being arrested, you will have your UCMJ rights read to you instead of your Miranda rights that you are likely more familiar with. Here are a few basic tips you can keep in mind should you ever find yourself in trouble with the military police.

Just like if you are being arrested by civilian police, the first thing you should do is keep quiet and request a lawyer. Much like how the “anything you say can be used against you in a court of law” provision is present in Miranda rights, a similar phrase is present in your UCMJ rights so it is smart to never resist arrest, never argue with the military police and request a lawyer as soon as you possibly can. An interesting note, military members were granted the right to have their UCMJ rights read to them a full 16 years before the Supreme Court gave Miranda rights to civilians!

The UCMJ spells out all of the rights afforded members of the military, so there really can’t be any confusion or misinterpretation of the rights you actually have. In addition to your Miranda-like rights, you also have the right to never incriminate yourself, again, just like in civilian law. You also have the right to know what you are being accused of, what you are being held for and what you are on trial for at all times. There are many rights present today in civilian law that came from military courts over the years.

It is important to note that your UCMJ rights actually differ from Miranda rights because you don’t have to be read your Miranda rights until you are arrested, but your UCMJ rights must be read to you as soon as you are a suspect of a crime. That means that if you were questioned, or brought into a police station without your UCMJ rights being read to you, there is a good chance that all of that information will be thrown out.

Ask any defense lawyer what you should do if you have your rights read to you and they will all tell you to ask for a lawyer as soon as you can. Remember, clamming up isn’t admitting guilt, no matter what the police officer tells you. He or she is trying to get a confession out of you so talking to them is often a bad idea.

As you can see, the UCMJ isn’t really all that different than civilian law, and many experts actually believe it is a much more fair way to try a case.

Understanding the court martial process

Saturday, June 14th, 2008

Even if you aren’t a member of the active duty military, the words court martial conjure fear like no other. If you are a member of the military, a court martial can not only mean the end of your military career, but it can also mean hard time spent at a federal prison for the rest of your life, or, if you are being tried for certain crimes including treason, it can mean death. Let’s take a look at the court martial process and see what we can learn about this infamous military trial system.

The overwhelming majority of court martial trials are for members of the military that have violated the Uniform Code of Military Justice, also known as the UCMJ. As fans of military dramas like JAG can tell you, the UCMJ is just like the criminal code for civilian courts, it lists the laws and penalties for members of the military to follow, but there are other uses for court martial trials. If you are currently living in a United States controlled area and martial law has been declared, you can be a civilian and receive a court martial. Suspected terrorists being kept at secret military prisons in places like Guantanamo Bay, Cuba are also subject to court martial trials, although the legality of these trials is highly suspect. What sorts of court martial trials are there? Let’s take a look.

Court martial trails can be broken down into three main categories: a summary court martial, a special court martial and a general court martial. A general court martial is the most similar to a civilian court case and has the most similar appearance to civilian law. On the other hand, a special court martial is often the least serious of the three since there is a maximum penalty in this type of court martial of one year. Although a special court martial shouldn’t be taken lightly, a year in jail is still very serious. There is no real civilian equivalent for a summary court martial, so let’s take a look at that now.

A summary court martial is often the most straight forwardd and the least complicated. It is a bit unusual because you have one person, known as a judge advocate, who essentially plays the part of both defense attorney for the accused and the prosecution. The punishment for this type of court martial is quite minor and demotions are often the main result.

A general court martial is the one that most of us think of when we hear about serious court martial offenses. Just like civilian courts, the person accused of the crime can get free legal consul or they can hire a lawyer of their own. An investigation period occurs before the trial starts so that both sides can gather information, again, just like a civilian court.

As you can see, a court martial offense is quite serious, but when you break down how it all works, it really isn’t as different, or any less effective, than a civilian trial at all.

What are the penalties of a court martial?

Saturday, June 14th, 2008

When most of us hear the words court martial, the hair stands up on the back of our heads and images of gallows or electric chairs flash through our mind. While death is a possible sentence for some types of court martial cases, there are actually a huge range of penalties that a person can receive, including demotions, fines and short imprisonments. Let’s take a look at the whole range of penalties doled out by the court martial system and see what you can expect if you are currently being accused of a crime.

There are three main types of court martial cases that can be tried in military courts. The first is known as a general court martial, and it is the most serious of all court martial cases. When you hear about a soldier being tried for treason or a high profile court martial happening, this is the kind of court martial style they are talking about. However, there are other penalties for a general court martial other than death. One interesting note about general court martial cases is that there are no limits on a penalty as it is associated with a crime. In civilian court, if you commit third degree murder, there is a limit on the number of years you can get for that crime, in a general court martial, there isn’t and there isn’t any limit for any crime that can be tried there.

The middle child of court martial cases is known as a special court martial. At a special court martial, serious cases are tried, but not cases serious enough to warrant a general court martial that could give the sentence of death. Offenses such as larceny, battery and other similar crimes are often tried at special court martial trials. If you are an officer, you can not be sentenced to time in jail nor can a special court martial remove or dismiss an officer of the military from active duty. If you are a non commissioned officer, you can receive no more than 12 months in jail, a serious reduction in the amount of pay you receive and possibly a bad conduct discharge.

The final kind of court martial is known as a summary court martial. Not only is this the least serious kind of court marital but it also the kind that gives soldiers the most flexibility and even gives the solider the option of opting out of this kind of trial if they feel that they would stand a better chance of being acquitted in a special court martial. The crimes prosecuted here are very minor and include things like petty theft and other small crimes. The most any enlisted man can expect from a summary court martial is a one month of prison and a forfeit of two thirds of your pay.

As you can see, the court martial process is actually quite complicated and can be tough to navigate without the proper knowledge beforehand.