UCMJ ARTICLE 44:
FORMER JEOPARDY
At Bilecki Law Group, We believe every service member has earned their right to an aggressive defense on their day in court. We specialize in taking the fight to the prosecution and winning cases that others said were unwinnable.
Can Service Members Be Tried for the Same Crime Twice?
As a service member, you have protections against being tried twice for the same offense. Those protections do not depend on United States citizenship.
The bad news is these protections have limitations. And as a member of the military, you may be subject to sentencing from the state and the military’s justice system.
This article describes how you as a U.S. service member are protected from having your rights twice put at risk by the same court system.
It also describes how separate, sovereign courts may be able to get around these protections if you are unprepared.
What Is Double Jeopardy?
Double Jeopardy has been a staple of the American legal code for centuries, going as far back as the country’s founding and the Bill of Rights. The Fifth Amendment to the U.S. Constitution provides the origin of double jeopardy’s namesake:
“…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”
A valid acquittal generally bars another prosecution for the same offense by the same sovereign. A conviction or dismissal raises additional questions about finality, the reason the first proceeding ended and whether a retrial is permitted.
This protection is especially important to service members, who must abide by state and federal law as well as the laws under the UCMJ.
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Double Jeopardy Protections Exist for Service Members Under Article 44 of the UCMJ
Article 44 of the UCMJ confirms the protections of double jeopardy for U.S. military personnel and details when the protection may be attached to a particular case. It affirms your rights to protection against being tried twice for an offense based on the same facts after an acquittal or conviction
Elements of UCMJ Article 44: Former Jeopardy
The text describing former jeopardy is found in the Uniform Code of Military Justice, listed as 10 U.S.C. § 844 under Subchapter VII. Its statutory provisions state:
(a) No person may, without his consent, be tried a second time for the same offense.
(b) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed.
(c)(1) A court-martial with a military judge alone is a trial in the sense of this section (article) if, without fault of the accused—
(A) after introduction of evidence; and
(B) before announcement of findings under section 853 of this title (article 53);
the case is dismissed or terminated by the convening authority or the special trial counsel or on motion of the prosecution for failure of available evidence or witnesses.
(2) A court-martial with a military judge and members is a trial in the sense of this section (article) if, without fault of the accused—
(A) after the members, having taken an oath as members under section 842 of this title (article 42) and after completion of challenges under section 841 of this title (article 41), are impaneled; and
(B) before announcement of findings under section 853 of this title (article 53);
the case is dismissed or terminated by the convening authority or the special trial counsel or on motion of the prosecution for failure of available evidence or witnesses.
When Does Double Jeopardy Apply to Military Personnel?
Here’s what you should know about double jeopardy under Article 44:
- In a trial before a military judge alone, the relevant Article 44(c) point is the introduction of evidence. In a trial with members, it is when the members have been sworn and impaneled after challenges. The statute also specifies the conditions under which a prosecution-initiated dismissal or termination counts as a trial.
- If you are tried in a civilian criminal court, you are protected once a jury is sworn in.
- A valid acquittal protects you from another trial for the same offense by the same sovereign. A dismissal does not always have that effect. Why and when the first case ended, whether the court had jurisdiction, and the finality of any conviction determine whether another trial is barred.
Article 44 provides strong protections for service members who have been accused of a crime by both state/federal authorities and military officials. But these protections have their limitations. Some of the most notable limitations include:
Dual Sovereignty Doctrine: The dual sovereignty doctrine provides the most significant exception to double jeopardy protections. Under the dual sovereignty doctrine, an individual may be charged twice for the same crime if two or more sovereign governments have their laws broken. For example, a service member who receives a DUI on a state highway may have charges brought by two authorities: the state, and the military.
Note that double jeopardy may protect a service member from facing trials in federal court and courts-martial because these legal entities are considered as one sovereign (the federal government, which operates under the U.S. Code). Individual states, however, along with governments outside of the U.S., are considered separate sovereigns and thus unaffected by double jeopardy restrictions.
While the Department of Justice frowns on prosecutors who bring both state and federal charges against a person, it is not unheard of for this to happen to military personnel.
Failure for a Court-Martial to Prove Jurisdiction: Sometimes a court-martial case must be dismissed due to insufficient proof of military jurisdiction. If the issues of jurisdiction are corrected, the case may be renewed against the service member.
Lesser Forms of Military Punishment: While double jeopardy applies to a special or general court-martial, it does not apply to lesser forms of punishment, such as administrative actions or a non-judicial punishment under Article 15 of the UCMJ.
For example, a service member may be hit with an NJP and still face criminal charges in a state or federal court. Prior nonjudicial punishment does not necessarily bar a later court-martial for a serious offense arising from the same conduct. The seriousness of the offense and the rules governing credit for prior punishment must be examined.
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Theoretical Case: Off-Duty Soldier Receives DUI on State Highway
DUIs provide a unique case study of what happens when a soldier runs afoul of both state and military legal jurisdictions. In this theoretical case study, a soldier has been pulled over by local state police and charged with driving under the influence.
Identifying Jurisdiction
Military status and the jurisdictional rules determine whether a person is subject to the UCMJ at the relevant time. If a service member is pulled over on a U.S. military base, it is highly likely the military will take the case and prosecute it. However, because this particular service member was arrested on a state highway, it’s far more likely he’ll be subject to the state’s criminal justice system. This won’t be confirmed until state and military authorities convene to discuss who should have ultimate jurisdiction. But in this instance, jurisdiction would likely fall to the state.
The military is likely to take some form of administrative action.
While the military will likely not court-martial this individual, they may very well pursue alternative means of punishment through:
- A non-judicial punishment which can lead to a deduction in pay, restrictions, and grade reduction.
- Administrative actions which may include reprimands, corrective training, and/or a revocation of driving privileges.
This, of course, is on top of what the state’s criminal court decides is a fair punishment for the DUI, which may lead to the revoking of this soldier’s driver’s license, heavy fines, and even jail time for repeat abuses
Are You Facing Military Charges Alongside a State Case? Bilecki Law Group Can Help
If you’re facing state and military charges and/or adverse administrative action for the same offense, the attorneys at Bilecki Law Group can help with the military defense. A separate civilian case needs counsel responsible for that proceeding, and we coordinate the military strategy with that lawyer. We work with service members in military courts worldwide. We know what it takes to secure positive outcomes no matter how tough the case.
Contact us at (813) 669-3500 to schedule your free consultation today.