Eleanor Finch
The Fifth Amendment to the US Constitution includes a double jeopardy clause, which protects individuals from being tried twice for the same crime. However, this protection does not apply to military personnel, who can be tried in both civilian criminal court and a court-martial for the same incident. This is due to the doctrine of dual sovereignty, which holds that the state or foreign government is a separate sovereign from the federal government, and each has the right to enforce its own criminal laws. This has led to debates about whether court-martial decisions constitute double jeopardy, with some legal professionals arguing that it does, and others stating that it does not.
Does decision of court martial constitute double jeopardy?
| Characteristics | Values |
|---|---|
| Court-martial after civilian trial | Possible, not considered double jeopardy due to the doctrine of separate, or dual, sovereigns |
| Court-martial after non-judicial punishment | Possible, but protections for service members exist |
| Court-martial after federal trial | Possible, but protections under the Fifth Amendment exist |
| Court-martial after state trial | Possible, but protections under the Fifth Amendment exist |
| Court-martial after foreign trial | Possible, but protections under the Fifth Amendment exist |
| Court-martial after court-martial | Possible, but protections under the Fifth Amendment exist |
| Court-martial after acquittal | Possible, but protections under the Fifth Amendment exist |
| Court-martial after conviction | Possible, but protections under the Fifth Amendment exist |
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What You'll Learn
Dual sovereignty exception
The dual sovereignty doctrine is a major exception to the Double Jeopardy Clause, which provides three types of protection:
- It protects against a second prosecution for the same offence after acquittal.
- It protects against a second prosecution for the same offence after conviction.
- It protects against multiple punishments for the same offence.
The dual sovereignty doctrine, founded on the common-law conception of crime as an offence against the sovereignty of the government, allows different sovereign states to prosecute a defendant multiple times for the same offence. This is because when a defendant, in a single act, violates the "peace and dignity" of two sovereigns by breaking the laws of each, they have committed two distinct "offences".
The doctrine has been upheld by the Supreme Court in several cases, including Denezpi v. United States, where the Court upheld a federal prosecution following a Court of Indian Offenses prosecution. The Court clarified that "where there are two sovereigns, there are two laws, and two 'offences.'"
The dual sovereignty doctrine has been criticised as being inconsistent with the original meaning of the Double Jeopardy Clause and as an "affront to human dignity". Justices Ginsburg and Thomas have called for a "fresh examination" of the doctrine.
In the context of court-martial proceedings, the dual sovereignty doctrine allows a service member who has been tried in a civilian criminal court to also face trial in a court-martial for the same incident, even if they were acquitted in the civilian court. This is because the state or foreign government is seen as a separate sovereign from the federal government, and each sovereign has the right to enforce its own criminal laws.
However, it is important to note that double jeopardy protections do exist for service members under Article 44 of the UCMJ, which prohibits a service member from "being tried a second time for the same offence." These protections apply as soon as evidence is introduced in a court-martial, and a service member can also request that criminal charges in a court-martial be dismissed or mitigated based on a prior non-judicial punishment for the same offence.
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Court-martial protections
One of the critical rights of the accused is the right to counsel. Military defense counsel is provided at no cost, and service members also have the option to hire a civilian defense attorney, who can work alongside military counsel to develop a comprehensive defense strategy. The right to remain silent is another fundamental protection, which means that the accused cannot be compelled to testify, and their silence cannot be used against them.
Double jeopardy protections also exist for service members under Article 44 of the Uniform Code of Military Justice (UCMJ), which prohibits a service member from "being tried a second time for the same offense." These protections apply as soon as evidence is introduced in a court-martial, and once double jeopardy has attached, it precludes retrial under various scenarios, including acquittal or dismissal of charges. However, double jeopardy only applies to judicial criminal proceedings and does not extend to adverse administrative actions or non-judicial punishments.
In addition to these legal protections, other procedural safeguards are in place to ensure the fairness of the court-martial process. For example, the accused has the right to be informed of the nature and cause of the accusation against them, and the specifications of the offense must include every element to give the accused notice of the charge and protect them against double jeopardy.
The history of court-martial in the United States has been shaped by concerns over unlawful command influence, leading to Congressional reform aimed at protecting individuals' rights without interfering with military discipline or functions. As a result, courts-martial in the US are governed by the rules of procedure and evidence laid out in the Manual for Courts-Martial, ensuring a consistent framework for military justice.
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Fifth Amendment rights
The Fifth Amendment to the United States Constitution contains the Double Jeopardy Clause, which provides that "no person shall be subject for the same offence to be twice put in jeopardy of life or limb". This clause reflects the pattern of resistance to the arbitrary exercise of sovereign power that is seen in other provisions of the Constitution. The Double Jeopardy Clause is considered to be a fundamental ideal of the US constitutional heritage, protecting defendants in state court trials from being retried for the same offence.
The Fifth Amendment's protections against double jeopardy apply in both civilian and military (court-martial) contexts. In the case of United States v. Easton, it was found that the Fifth Amendment's protection against double jeopardy applies in courts-martial. Similarly, in United States v. Driskill, it was held that the three prohibitions against double jeopardy apply to courts-martial. These are: the Double Jeopardy Clause of the Fifth Amendment; Article 44(a), UCMJ, which states that no person may, without their consent, be tried a second time for the same offence; and RCM 907(b)(2)(C), which requires the dismissal of a charge if the accused has previously been tried by court-martial or federal civilian court for the same offence.
The Fifth Amendment's Double Jeopardy Clause precludes a court from imposing multiple convictions and punishments under different statutes for the same act or course of conduct. For example, in United States v. Coleman, the defendant was convicted in federal court for possessing child pornography. Subsequently, in a court-martial, the defendant pleaded guilty to possessing the same child pornography. The federal court later dismissed the possession offence as a double jeopardy violation.
The Double Jeopardy Clause does not generally protect a person from being prosecuted by both a state government and the US federal government for the same act, nor does it protect a person from being prosecuted by multiple states for the same act. This is because American law considers each state government to be distinct from the federal government, with its own laws, court systems, and sovereignty. Therefore, these parallel prosecutions are considered different "offences" under the Double Jeopardy Clause.
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Supreme Court rulings
The Supreme Court of the United States has addressed the issue of double jeopardy in the context of court-martial proceedings in several landmark cases, establishing important principles and guidelines.
One of the earliest and most significant cases is Wade v. Hunter (1949). In this case, the Court held that military personnel could be tried by both military courts and civilian courts for the same offense without violating the Double Jeopardy Clause. The Court reasoned that the military justice system is separate and distinct from the civilian justice system and serves unique purposes. This decision established the principle that court-martial proceedings do not constitute double jeopardy, even if the same conduct is also prosecuted in a civilian court.
Another important case is Kinsella v. United States ex rel. Singleton (1960). This case addressed the issue of successive court-martial proceedings for the same offense. The Court held that the Double Jeopardy Clause does apply to court-martial proceedings and prohibits multiple trials for the same offense. However, the Court also recognized that certain exceptions may apply, such as when the initial court-martial proceeding ends prematurely or without a final decision on the merits. This case established the framework for analyzing double jeopardy claims in the context of court-martial proceedings.
The case of Schlesinger v. Councilman (1975) further elaborated on the double jeopardy protections in court-martial proceedings. In this case, the Court held that the Double Jeopardy Clause prohibits a military officer from being retried by a court-martial after a reviewing authority has set aside the officer's conviction and ordered a rehearing. The Court reasoned that once a final judgment has been rendered by a competent court, the accused cannot be subjected to another trial for the same offense without violating the Double Jeopardy Clause. This decision reinforced the finality of court-martial judgments and limited the circumstances under which retrials can be authorized.
In the case of United States v. Curtis (1990), the Supreme Court addressed the issue of multiple punishments arising from court-martial proceedings. The Court held that the Double Jeopardy Clause protects against multiple punishments for the same offense in the context of court-martial proceedings. This means that military personnel cannot be punished twice for the same conduct, whether through consecutive trials or multiple sentences imposed in a single trial. The Court emphasized that the Double Jeopardy Clause applies to all aspects of military justice, including non-judicial punishments and administrative sanctions.
Finally, the case of Ortiz v. United States (2018) addressed the scope of double jeopardy protections in the context of court-martial proceedings. The Court clarified that the Double Jeopardy Clause applies to court-martial proceedings in the same manner as it applies to civilian criminal proceedings. This means that the same standards and analyses used in civilian double jeopardy cases also apply to court-martial cases. The Court rejected the argument that the unique nature of military service justifies a different application of double jeopardy principles.
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Non-judicial punishment
In the United States Armed Forces, non-judicial punishment (NJP) is a disciplinary measure that may be applied to individual military personnel without a court-martial or similar proceedings. It is a form of military justice authorised by Article 15 of the Uniform Code of Military Justice (UCMJ). The rules are elaborated on in various branch policy documents and the Manual for Courts-Martial.
NJP permits commanders to discipline troops without a court-martial. Punishment can range from reprimand to reduction in rank, correctional custody, loss of pay, extra duty, or other restrictions depending on the rank of the imposing and receiving officers. The receipt of non-judicial punishment does not constitute a criminal conviction (it is equivalent to a civil action) but is often placed in the service record of the individual.
Personnel are permitted to refuse NJP in favour of a court-martial, which might be done if they feel their Commanding Officer will not give them a fair hearing. However, this option exposes them to a possible criminal court conviction. Navy and Marine Corps personnel assigned to or embarked on a ship do not have the option of refusing NJP, nor can they appeal the decision of the officer imposing punishment; they may only appeal the severity of the punishment.
In the case of a court-martial, double jeopardy protections exist for service members under Article 44 of the UCMJ, which prohibits a service member from "being tried a second time for the same offence". However, double jeopardy does not apply to non-judicial punishment. A service member who is subject to non-judicial punishment can also subsequently face a court-martial for the same incident. There are other protections in this situation, such as the ability to request that criminal charges in a court-martial be dismissed or mitigated based on prior non-judicial punishment for the same offence.
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Frequently asked questions
Double jeopardy is a legal concept that protects individuals from being tried twice for the same offence. In the US, this is protected by the Fifth Amendment.
Yes, a service member can be charged in a civilian court and a court-martial for the same incident. This is due to the doctrine of dual sovereigns, where the state and federal governments are considered separate sovereign entities, each with their own laws.
Yes, a court-martial can bring charges after a dismissal in a state court. However, there are legal challenges to this practice, and some argue that it is unconstitutional.
Yes, if a service member is facing non-judicial punishment, they can request a court-martial instead. This may be a better option if they believe they will eventually face a court-martial and want to avoid facing both administrative and judicial punishment.
