Does a military jury have to be unanimous?
When the government charges you with a crime under the Uniform Code of Military Justice (UCMJ), the prosecution doesn’t have to convince a unanimous jury that you’re guilty beyond a reasonable doubt unless the penalty for the crime is death.
In our last post, Military Juries – Jury of 12? Jury of Your Peers?, we wrote about how the jury—called a panel in a court martial—doesn’t require twelve members. We also explained how the members are often superiors rather than peers. But today we’re explaining how the prosecution’s burden to prove guilt at trial is easier than it would be in the civilian courts.
The right to a unanimous jury in state and federal courts
Juries in federal criminal court must be unanimous when finding someone guilty. Until recently, 48 of the 50 states required unanimous juries. Recently, Louisiana voted to end non-unanimous juries. Oregon remains the only hold-out, where jurors may convict with at least ten guilty votes on a twelve-person jury.
Military courts-martial don’t require unanimous juries
However, military members facing criminal charges under the UCMJ do not enjoy the same due process protections afforded to those facing charges in civilian courts. Most military members know that when they sign on the dotted line, they give up the full exercise of some of their Constitutional rights. Servicemembers know that when they wear the uniform, they represent their respective service branches and the United States of America. Soldiers, Sailors, Airmen, and Marines know, for example, that regulations may put limits on their exercise of free speech.
Just as you sacrificed the full exercise of your freedom of expression if you volunteered to serve your country in the armed forces, you also gave up your right to be convicted and sentenced by a unanimous jury if you’re charged with a crime. A military prosecutor in a court-martial only needs to convince two-thirds of the members of guilt beyond a reasonable doubt to secure a guilty verdict.
Voting procedures in a military court-martial
Rule for Court-Martial (R.C.M.) 921 outlines the voting procedures once the members enter deliberations after the trial has ended. Only the members of the panel can be present. Voting is done by secret ballot. The junior member on the panel collects and counts the votes. All members of the panel are supposed to exercise their own independent judgment, and superior ranking members are prohibited from using their rank to influence the votes of other members.
After the members take a vote, if there are fewer than two-thirds of the votes for a finding of guilt on that specification, the accused is found not guilty of the offense. If at least two-thirds of the votes are for a finding of guilt on a specification, the accused is found guilty of that offense.
Scenarios and examples with an odd number of votes
Any fraction of a vote required for a finding of guilt is rounded up to nearest whole number. That means if a panel has five members, three votes would only equal 60% of the members, so three votes for guilty and two votes for not guilty would result in an acquittal. A “fraction of a vote” would be required in that scenario to reach exactly two-thirds, 66.67%, so that fraction is rounded to the nearest whole number. In that scenario, four out of five votes—a total of 80%—would be required for a finding of guilty.
A panel of six members would similarly only need four votes for a guilty finding because four votes out of six is exactly two-thirds. If that jury were seven members, the number of guilty votes needed for a conviction would rise to five.
The Importance of Hiring an Experienced Military Trial Attorney
As with many procedures in the military, the goal is speed and efficiency. Not requiring all members to agree as to guilt or innocence eliminates the deadlocked juries and mistrials that occur in civilian courts when the jury is not unanimous. The benefit to the accused is that a hold-out guilty vote won’t keep the member from getting an acquittal. But the risk is that members who hold out for not-guilty verdicts because of residual doubt can’t necessarily save the accused from a conviction.
When facing charges in the military, it’s important for Soldiers, Sailors, Airmen, and Marines to know that they don’t have a right to a unanimous jury of twelve peers. An attorney taking cases to trial in civilian courts can reach a successful outcome for a client by convincing one juror to vote not-guilty. An attorney defending an accused at a court-martial doesn’t have the same luxury. It’s one more reason why the importance of finding an attorney with experience trying cases in military court can’t be overstated.
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