What Role Does the Military Judge Play in a Court-Martial?

A military judge is detailed to every general and special court-martial and “shall preside over each open session” (Article 26(a)). The judge rules on all legal questions and motions, holds Article 39(a) sessions without the members, instructs the members, decides guilt alone when the accused requests judge-alone trial and the judge approves (Article 16), and, for non-capital cases in which all findings of guilty are for offenses committed after December 27, 2023, imposes the sentence. Military judges can also act before referral on matters such as pretrial confinement and investigative subpoenas (Article 30a), and can punish contempt with up to 30 days of confinement, a $1,000 fine, or both (Article 48).

Who the judge is

A military judge must be “a commissioned officer of the armed forces who is a member of the bar of a Federal court or a member of the bar of the highest court of a State” and certified as qualified “by reason of education, training, experience, and judicial temperament” by the Judge Advocate General (Article 26(b)). The judge is designated for detail by the Judge Advocate General, the convening authority and its staff may not rate the judge’s judicial performance, and assignments are for minimum periods set by presidential regulation (Article 26(c)). No one may act as judge who is the accuser, a prosecution witness, or the preliminary hearing officer or counsel in the same case (Article 26(d)). The judge “may not consult with the members of the court except in the presence of the accused, trial counsel, and defense counsel, nor may he vote with the members” (Article 26(e)). These safeguards are covered in how judicial independence is maintained for military judges.

Before referral

Article 30a directs the President to prescribe rules for proceedings before referral, including pre-referral investigative subpoenas, warrants or orders for electronic communications, matters referred by an appellate court, victims’ rights matters under Article 6b, and matters relating to pretrial confinement and the accused’s mental capacity or responsibility. Under R.C.M. 305(h) as amended in 2024, a military judge may direct release from pretrial confinement “as part of a pre-referral proceeding conducted in accordance with R.C.M. 309”; see pretrial confinement and restraint.

Running the trial

Article 39(a) sessions. After referral to a court-martial with members, the judge may call sessions without the members to hear and decide motions, rule on any matter the judge may decide, hold arraignment and receive pleas, conduct sentencing under Article 53(b)(1), and perform other procedural functions that do not require the members (Article 39(a)).

Rulings. The judge decides motions to suppress, motions to dismiss, challenges to members, and admissibility of evidence under the Military Rules of Evidence. The trial sequence is described in the structure and sequence of a court-martial trial.

Pleas. Before accepting a guilty plea, the judge must personally question the accused and find a factual basis (R.C.M. 910(c)-(e)); see how guilty pleas are handled.

Contempt. A military judge may punish for contempt any person who uses a menacing word, sign, or gesture in the judge’s presence, disturbs the proceeding by riot or disorder, or “willfully disobeys a lawful writ, process, order, rule, decree, or command issued with respect to the proceeding.” The punishment “may not exceed confinement for 30 days, a fine of $1,000, or both” (Article 48(a)-(b)). The same power belongs to CAAF and Court of Criminal Appeals judges and to military magistrates designated under Article 19.

Judge alone or with members

• General court-martial. Judge alone only if the accused, knowing the judge’s identity and after consulting counsel, requests it before assembly and the judge approves; not available for an offense punishable by death unless the case was referred as noncapital (Articles 16(b)(3), 18(b)).
• Special court-martial. Judge alone either by referral under Article 16(c)(2)(A), which carries the lower limits of Article 19(b), or on the accused’s request after referral to members under Article 16(c)(2)(B). A military magistrate may preside over a judge-alone case referred under Article 16(c)(2)(A) if the judge designates one with the parties’ consent (Article 19(c)).
• With members. The judge instructs the members on the elements, the burden of proof, and defenses, and does not vote.

Sentencing

For non-capital cases in which all findings of guilty are for offenses committed after December 27, 2023, the judge sentences, states confinement and any fine for each offense, and applies the sentencing parameters or criteria (Articles 53(b)(1), 56(c)). The government may appeal a sentence to the Court of Criminal Appeals, with the Judge Advocate General’s approval, on the grounds that it violates the law, results from an incorrect application of a sentencing parameter, or is plainly unreasonable, within 60 days after entry of judgment (Article 56(d)). The government’s right to appeal a sentence dates from the Military Justice Act of 2016; the FY2022 NDAA (Pub. L. 117-81, § 539E(c)) added the parameter ground (Cornell amendment notes to § 856). Sentencing is described in how the sentencing phase of a court-martial proceeds.

After trial

The judge signs the Statement of Trial Results, decides post-trial motions that may affect a plea, finding, sentence, or the record, and enters the judgment of the court (Articles 60, 60c).

Sources

• 10 U.S.C. § 826, Article 26, Military judge of a general or special court-martial (Cornell LII)
• 10 U.S.C. § 830a, Article 30a, Proceedings conducted before referral (Cornell LII)
• 10 U.S.C. § 839, Article 39, Sessions (Cornell LII)
• 10 U.S.C. § 848, Article 48, Contempt (Cornell LII)
• 10 U.S.C. § 856, Article 56, Sentencing, with amendment notes (Cornell LII)
• 10 U.S.C. § 816, Article 16 (Cornell LII)
• 10 U.S.C. § 860c, Article 60c (Cornell LII)
• Manual for Courts-Martial, United States (2024 ed.), R.C.M. 305(h), 309, 910

This article is general information about military law, not legal advice for any individual case.