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