Introducing Judge Advocates Into Courts-Martial

By 1806, judge advocates were introduced as a mandatory aspect of courts-martial. Sort of. And only on the prosecution side. Sort of. Military defendants were, though, allowed to hire a civilian lawyer to represent them. Not really. But when they could, the lawyer usually wasn’t allowed to speak. . . .

Adding a new character to the court-martial cast, judge advocates were “prosecutors.” But don’t confuse early courts-martial with anything resembling the adversary proceeding we are used to seeing in civilian trials. Judge advocates “prosecute[d] in the name of the United States;” judge advocate defense counsel did not exist. Nor was any military officer (non-lawyer) even assigned to assist the military defendant.

The “prosecutor” was also supposed to “consider himself as counsel for the prisoner.” The military defendant entered his plea to the panel and then the judge advocate presented the evidence against the defendant, yet also objected to leading questions and any question put to the defendant in which the answer would incriminate him.

But the “prosecutor” was really a secretary with additional duties. He had some lawyer-like responsibilities mentioned above, but he also swore everyone in, packaged the original record of the proceedings together and forwarded it along to the Secretary of War “with as much expedition as the opportunity of time and distance of place can admit. . . .” The show still belonged to the panel.

So, judge advocates were introduced, but not required. He could “deputize” another person to serve in the same role, and so could the commander that convened the court-martial.

The military defendant, formally known as the Accused, had no right to an attorney (or anyone to stand with him, attorney or otherwise). This was a privilege his commander had complete discretion to grant. Even when he could afford to hire his own lawyer, this person was not allowed to speak in the court-martial. Any communication had to be said by the Accused or submitted in writing, though this rule was inconsistently applied.

That rounds out our cast of characters in early courts-martial, at least within the Army. With some adjustments here and there, this system remained largely intact well into the twentieth century’s world wars.

We’ll see where the court-martial story takes us next time. I’m thinking the process after the panel has recommended its punishment after finding the Accused guilty of the charged offenses.

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