In 2019, a significant change went into effect as to the procedures for Court-Martial trials by members (commonly referred to as a jury trial). Prior to 2019, a General Court-Martial trial by a panel of members consisted of no less than five officer (5) members, and a 2/3 vote of the members was required for conviction of any charge. Upon request of an enlisted accused, 1/3 of the court-martial members panel would be enlisted members, senior to the accused. As a result of the amendments to Articles 16 and 52 of the Uniform Code of Military Justice, a General Court-Martial trial by a panel of members now consists of eight (8) members, with the authorization to be reduced to seven (7) or six (6) members, if after empanelment, there are challenges or excusals. As before, upon request of an enlisted accused, 1/3 of the court-martial members panel must be enlisted members, senior to the accused. A 3/4 vote is required for a finding of Guilty.
Prior to 2019, if the accused elected to be tried by a court-martial consisting of a panel of members, the members would be required to determine the sentence if the accused was convicted and 2/3 of the members would have to agree on the sentence to be imposed (unless the sentence was for 10 years or more, at which time a 3/4 vote was required). After the 2019 change in procedures, the military judge imposes the sentence, however if members determined the issue of innocence or guilt, the accused has the right to have court-members determine the sentence. As before, the accused also has the right to request trial and sentencing by military judge alone.
MORE CHANGES COMING
Pursuant to the National Defense Authorization Act (NDAA-22), recently signed into law by the President, with the exception for capital (death penalty) cases, Court-Martial members will no longer impose sentences at a Court-Martial upon conviction for any offenses occurring on or after 27 December 2023. In addition, Military Sentencing Guidelines, similar to Federal Sentencing Guidelines currently in use in Federal District Court, will be implemented. As in Federal District Courts, the sentencing guidelines will be advisory, and not mandatory. If the military judge chooses to impose a sentence in excess of the range recommend in the applicable guidelines, or a sentence less than the sentencing guidelines, the military judge will be required to provide written basis for his exception to the advisory guidelines. If the accused and Government have come to terms on a Pre-Trial Agreement, the military judge will have the ability to reject the plea agreement if the agreed upon sentence is outside of the parameters set by the sentencing guidelines.