5 Dangerous Myths About Defending A Court-Martial

GavelMyth 1: A COURT-MARTIAL is required to be a fair fight

Truth: From the beginning of the case, the court martial defendant faces huge disadvantages. The government has unlimited resources at a court martial, but the appointed defense counsel’s office receives very little funding. The government will have at least two prosecutors at a court martial, while the defendant is typically entitled to have only one appointed attorney. The prosecution has an entire office of investigators, but the defense is entitled to none. The prosecution can afford to travel and have any witness it wants to the court martial in order to testify against the defendant, but the defense needs to get the government’s approval to fund any defense witness travel. The prosecution gets to use just about any expert witness it chooses, but the defense has to get the government’s approval to pay for any of the defense experts, and typically the government denies defense requests for specific experts. During the court martial, the defendant’s commander might pack the courtroom with members of the defendant’s unit, so that the command can send a message. If the defendant gets convicted, the appellate military courts will be very reluctant to undo the court martial results. In every sense, the odds are stacked against the court martial defendant.


Myth 2: You can’t be convicted if it’s just “he said, she said.”

Truth: You can be convicted if the person accusing you is believed. That’s all it takes: no corroborating evidence is required. For the prosecution, this is easier said than done, but in this current political climate sexual assault cases in particular, can and will — go to trial based on the accusation alone. However, you will almost never see a sexual assault case that is strictly one person’s word against another’s. From a trial lawyer’s perspective, there really is no such thing as a “he said, she said” case. Most cases are decided based on corroborating or conflicting evidence from internet activity, cell phone location, texting, phone records, hearsay witnesses, eye witnesses, interrogations, security cameras, private videos – it can come from anywhere. The key is to make that evidence, especially the government’s evidence, work for you. Because there will be more evidence than just the accuser’s word.

Myth 3: The case was dropped downtown … family advocacy said it was unfounded … I CAN’T BE PROSECUTED BY THE MILITARY NOW.

Truth: Civilian authorities often hand jurisdiction to the military. Just because the civilians or a family advocacy office classifies a case as dropped or unfounded, that doesn’t mean the military is barred from investigating and prosecuting it. Family Advocacy’s goals and standards are different from law enforcement’s goals and standards. Civilian law enforcement offices frequently hand cases to the military precisely because the military wants to pursue them and has the resources to do it. These cases aren’t dropped, they’re handed over. If you are being accused of misconduct, think about it: the fact that the case is being investigated by the military proves that they can pursue you, and you can bet that they will continue to pursue you. The desire of family advocacy or civilian law enforcement to go forward has nothing whatsoever to do with what military investigators, commanders, and their JAG advisors decide to do with the case.

Myth 4: If you talk, things will go easier for you.

Truth: You have heard that anything you say can and will be used against you. Interrogations are designed to get confessions, not to get you out of trouble. Investigators will assure you that their job is to gather the facts, without bias, without picking sides. They’ll say they merely want to give the commander the information needed in order to decide if the case should go forward. Every single interrogation begins with lots of non-threatening small talk, as if you’re just at their office, in a small, windowless interrogation room, at night, two of them and one of you, just to have a casual conversation about what you know. Ask yourself if you believe the police in general are as committed to proving someone didn’t commit a crime as they are to proving he did commit a crime. If investigators think you broke the law, they’re going to do their best to get you to admit it. Out of context, just about anything you say can be twisted to make it sound like you confessed. Investigators are allowed to lie, trick, and use psychology to intimidate you. You can keep denying that you did anything wrong, but they won’t let you go home simply because you say you didn’t do it, even if you deny it all day and night. They’ll keep hammering you until you make a statement they like, or until you demand a lawyer. You have a right to refuse to make any statement, and you have a right to speak with a lawyer before any questioning can begin. The smart play for you is to demand a lawyer immediately, before the investigators lure you in with bogus chit-chat.


Myth 5: If you made a statement to investigators that makes you sound guilty, YOU NEED TO START THINKING ABOUT PLEADING GUILTY.

Truth: As often as not – perhaps more often – what investigators and prosecutors characterize as a confession isn’t a confession. Even if you allowed yourself to be interrogated and said something you regret, you might be able to save your case. Even if you said something that sounds like a direct admission, you might still have a solid chance of winning. The key is to understand the psychology of interrogations, and to use that insight to help jurors interpret the development of the interrogation, which often lasts hours, so they can see how repeated, truthful denials (“I didn’t sexually assault her”) eventually become an admission (“If that’s how you define sexual assault, I guess I might have sexually assaulted her”). Without knowing the tricks interrogators use, and the psychological effects these tricks are designed to have, you can’t know whether your “confession” is enough to get you convicted.