10th International Judicial Conference in Strasbourg from 23 to 24 May 

Structural Comparison of American Criminal Trials in Federal Civilian Courts, Military Courts-Martial, and Military Commissions

By the Honorable Eugene R. Sullivan
United States Court of Appeals Judge

Washington, DC
USA
May 2002

(Original text in English)

General Comparison

Characteristics of US District Courts Courts-Martial Military
the System (Civilian) (Military) Commissions
(Terrorists)

Subject Matter Jurisdiction

Federal Crimes

Military Crimes

Law of war and other offenses triable by military commissions

Personal Jurisdiction

Any person in US territory

All members of the US Military

Suspected terrorists who are not US Citizens

Situs of trial

Federal District Courthouse in USA

Courtroom on a military base or a ship anywhere in the world

Place designated by appointing authority (probably outside USA)

Judge

Presidential appointee Civilian Judge

Military Judge appointed by Judge Advocates General

No Judge but Presiding Officer that is Military Lawyer

Fact Finding Body

Civilian Jury or Judge

Military Jury or Judge

3 – 7 Military Officers - Members

Sentencing Body

Judge

Military Jury or Judge

Commission Members

Prosecutor

Civilian – US Attorney

Military Lawyer

Military lawyer or special trial counsel (Justice Dept.)

Defense Counsel

Public Defender or retained civilian counsel

Detailed JAG or retained civilian counsel

Detailed Military lawyer or retained civilian counsel with security clearance.

Characteristics of US District Courts Courts-martial Military
the System (Civilian) (Military) Commissions
(Terrorist)

Rules of Evidence

Federal Rules of Evidence (FRE)

Military Rules of Evidence (very similar to FRE)

All evidence having probative value to a reasonable man

Rules of Procedure

Federal Rules of Criminal Procedure (FRCP)

Rules for Courts Martial (MCM) (similar to FRCP)

Military Commission Rules (similar to FRCP)

Right to Witnesses

Yes

Yes

Yes

Right to Cross-examination

Yes

Yes

Yes

Trial Presumption

Presumption of innocence and burden of proof on Prosecution

Presumption of innocence and burden of proof on Prosecution

Presumption of innocence and burden of proof on Prosecution

Standard of Proof

Proof Beyond a Reasonable doubt

Proof Beyond a Reasonable doubt

Proof Beyond a Reasonable doubt

Hearsay Rule

Strict Hearsay Rule

Strict Hearsay Rule

No rule against hearsay

Characteristics of US District Courts Courts-martial Military
the System (Civilian) (Military) Commissions
(Terrorist)

Professional Judiciary

Trained Judge
(Civilian)

Trained Judge
(Military)

No judicially trained officer but presiding officer must be a qualified military lawyer

Verdict

Must be unanimous

Less than unanimous,
(2/3, 3/4)

2/3 of members

Courtroom Order

Summary contempt powers for Judge

Summary contempt over military
Must refer civilians to US Attorney

Power to maintain order over persons before it

Death Penalty

Yes

Yes

Yes

Death Penalty Procedure

Unanimous vote of 12 jurors

Unanimous vote of 12 members

Unanimous vote of 7 members

Appeals

U.S. Courts of Appeals and Supreme Court

Courts of Criminal Appeals; USCAAF and Supreme Court

Approving authority, Board of Review, Secretary of Defense, President