Answer By law4u team
In military justice, the type of court martial that handles a particular case is generally determined by the severity of the offense and the potential penalties involved. However, there may be situations where the accused can request a different form of court martial. Understanding the circumstances under which such a request can be made is important for ensuring that the accused’s legal rights are respected.
Can the Accused Request a Higher Form of Court Martial?
Requesting a Change in Court Martial:
Summary Court Martial to General Court Martial:
In some cases, an accused individual facing a Summary Court Martial (SCM) may have the option to request a General Court Martial (GCM), especially if the charges against them are more serious than originally believed or if they want the trial to be conducted with a full panel of judges.
Legal Rights and Request Process:
Typically, an accused can request to have their case tried by a General Court Martial if the charges are severe or if they feel that a Summary Court Martial would not provide a fair trial. This request can often be made by the accused or their defense counsel.
Commanding Officer’s Decision:
The final decision on whether a case is moved to a higher form of court martial (i.e., from SCM to GCM) generally lies with the commanding officer. The commanding officer has the discretion to approve or deny such a request, based on the nature of the charges and the military needs of the service.
When Would the Request Be Granted?
If the accused faces more serious charges after an investigation, they may be entitled to a General Court Martial, where the penalties could be more severe, and the trial will be more formal.
If the charges are serious enough to warrant harsher penalties, the accused can argue that they are entitled to a trial by a full panel, such as in a General Court Martial.
Circumstances for Requesting a Higher Court Martial:
Serious Charges:
If the charges against the accused include more serious offenses (e.g., murder, espionage, desertion, or other felonies), the Summary Court Martial may not be appropriate. The accused can request a General Court Martial to ensure a formal trial with greater legal protections.
Desire for Legal Protections:
In a General Court Martial, the accused has more legal protections, including a full defense counsel, a panel of judges, and more formal rules of evidence and procedure. If the accused believes these protections are necessary for a fair trial, they may request a higher court martial.
Lack of Confidence in the Summary Court Martial:
If the accused believes that the Summary Court Martial process would be biased or not provide a fair opportunity for a defense, they can request a General Court Martial to ensure a more rigorous legal process.
Limitations on Requesting a Higher Court Martial:
Discretion of Commanding Officer:
While the accused may request a higher court martial, the final decision on whether to elevate the case rests with the commanding officer. The commanding officer may deny the request if they believe the case does not meet the criteria for a General Court Martial.
Type of Offense and Punishment:
In general, less severe offenses are handled by a Summary Court Martial. If the commanding officer decides that the offense is minor, they may not grant the request to move to a General Court Martial, especially if the punishment at stake is within the scope of SCM penalties (such as confinement or reduction in rank).
Right to a General Court Martial (For Some Serious Cases):
Automatic Right for Major Offenses:
In certain serious cases, such as those involving major crimes (e.g., serious physical injury, espionage, or desertion), the accused has the automatic right to be tried by a General Court Martial, and the commanding officer may not have discretion to opt for a Summary Court Martial in such instances.
Example:
An enlisted soldier is accused of a serious offense, such as theft of military property. The charges are severe, and the soldier believes they are entitled to a more formal trial. The soldier requests that their case be tried by a General Court Martial, and the request is granted by the commanding officer due to the nature of the charges.
Conclusion:
While the accused can request a higher form of court martial, such as moving from a Summary Court Martial to a General Court Martial, the decision ultimately rests with the commanding officer. The request is usually considered in cases involving more serious charges or if the accused seeks more legal protections.
