Answer By law4u team
In a court martial, a service member has the right to be represented by legal counsel, including the option to be represented by a civilian lawyer. While the military provides judge advocate general (JAG) officers as defense counsel, the accused can request a civilian lawyer if they choose. However, there are specific rules and procedures that must be followed for a civilian lawyer to be involved in a military trial.
Can the Accused Be Represented by a Civilian Lawyer in a Court Martial?
Right to Choose Civilian Counsel:
Under military law, a service member who is being tried in a court martial has the right to be represented by a civilian lawyer, but they must meet certain requirements. While military courts generally provide a JAG defense attorney for those who cannot afford private counsel, the accused can hire a civilian attorney at their own expense if they wish.
Example: If a soldier is facing a serious charge such as desertion or espionage, they may choose to hire a civilian lawyer with experience in military law to represent them, especially if the case is complex or high-profile.
Approval Process for Civilian Counsel:
A civilian lawyer must be approved by the military court to represent the accused in a court martial. This process ensures that the civilian attorney has the requisite expertise in military law and is authorized to practice before the court martial. The civilian lawyer must also meet certain criteria, such as being admitted to practice law in a federal court or having experience with military justice.
Example: If a civilian lawyer is hired, they must submit a request to the court martial for approval to represent the accused. If the attorney meets the required qualifications, the request will likely be granted.
Military Counsel Available if Civilian Counsel is Not Available:
If a civilian lawyer is not available or is not approved by the court, the accused has the right to be represented by military defense counsel. The JAG attorney will be provided by the military at no cost to the accused if they are unable to afford a civilian lawyer.
Example: A service member who cannot afford a civilian attorney will automatically be assigned a JAG lawyer to represent them in the trial, ensuring that they have legal representation regardless of their financial situation.
Restrictions on Civilian Counsel:
While a civilian lawyer can represent the accused, there are some limitations on the role of civilian counsel in a court martial. A civilian lawyer may not have the same level of access to certain classified information or military procedures as a military defense attorney. Additionally, civilian lawyers may not be familiar with the specific protocols or procedures of military courts, which can create challenges in navigating the legal system.
Example: A civilian attorney might need additional training or permission to access classified military evidence that is essential for defending the accused. This could delay the trial or affect the attorney's ability to fully represent their client.
Role of Civilian Lawyer in the Court Martial:
The civilian lawyer’s role in the court martial is similar to that in civilian courts, but with some distinctions. They will help the accused prepare a defense, present evidence, cross-examine witnesses, and advise the accused during the trial. However, they must adhere to the rules and procedures of military law and cooperate with military court personnel.
Example: A civilian lawyer defending a soldier accused of assault will examine evidence, cross-examine witnesses, and argue on behalf of the accused, but must comply with military law and court rules, including obtaining approval for certain legal motions.
Costs of Civilian Counsel:
If the accused chooses a civilian lawyer, they are responsible for the costs of the defense, which can be substantial depending on the complexity of the case and the attorney's fees. In cases where the accused cannot afford a civilian lawyer, they may seek assistance from military legal counsel.
Example: A service member hiring a civilian lawyer for a court martial on charges of fraud may have to cover legal fees, which could be significant depending on the lawyer’s experience and the length of the trial.
Exceptions for Civilian Counsel in Special Cases:
In certain cases, such as high-profile military trials or cases involving national security concerns, there may be specific rules governing the involvement of civilian lawyers. The military may impose restrictions or require additional clearance for civilian lawyers, especially if they are not familiar with the sensitive nature of the case.
Example: In a case involving espionage, a civilian lawyer may need additional clearance to access classified materials or may be prohibited from representing the accused if they do not meet the security clearance requirements.
Example:
A soldier accused of treason requests to be represented by a civilian lawyer. The civilian attorney, who specializes in military law, submits a request to the court martial for approval. After the court reviews the attorney’s credentials and military law experience, the civilian lawyer is approved to represent the accused. During the trial, the civilian lawyer helps the accused prepare their defense, cross-examines witnesses, and argues the case in court, following military procedures and protocols.
