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The Communitarian Function of Court-Martial Members

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Master's thesis

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The Sixth Amendment to the Constitution guarantees the right to an impartial jury in all criminal prosecutions. In 1930, the Supreme Court held a defendant in a criminal case could waive his right to a jury trial with the consent of the government and the approval of the court. Federal Rule of Criminal Procedure 23 codified this holding. By requiring the government consent to a waiver of trial by jury, the Supreme Court implicitly recognized a state or public interest in jury trials in criminal cases, distinct from the interests of the defendant. Over time, the Court, and lower courts, have variously articulated the bases and nature of the public interests injury trials. These interests have been called the communitarian functions of jury trials. These functions include providing for community participation in the criminal justice system, ensuring accurate fact-finding, educating the citizenry, providing for a community affirmation of the system, and providing a vehicle for the vindication of community standards and values. These communitarian functions of trials by jury apply equally to trials by courts- martial composed of members. Unlike the Federal rule, which gives the government a voice in the determination whether to forego a jury trial, the Uniform Code of Military Justice UCMJ and the Rules for Courts-Martial RCM and case law interpreting and implementing the UCMJ, afford the government is silenced in the fundamental decision of trial forum. I suggest the governments voice should be heard on the fundamental issue of whether the community will have the important opportunity to participate in the administration of the military justice system as members of courts-martial. To realize this voice, I propose a change to Article 16 of the UCMJ and RCM 903, implementing that UCMJ provision, that will require the convening authoritys consent to waiver of a trial by court-martial members.

Subject Categories:

  • Sociology and Law
  • Military Forces and Organizations

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