Fairness and reform of military trials

Why should entering the military change the way someone is tried? The opening sets up that question by contrasting the familiar right to a jury trial with prosecution through courts-martial. Maybe the military needs proceedings to move more quickly. That is a possible explanation to keep in mind, not something we have established yet.

At first, a court-martial sounds much like a civilian trial: prosecutor, defense counsel, judge, and a panel that decides guilt. So where is the difference? The voting rules and the size of the panel. In the system described here, a U.S. panel can convict with a two-thirds majority, while a Canadian five-member panel needs only a simple majority. Not everyone has to agree.

The next paragraph contrasts those rules with the protection given to civilian defendants. Canada requires unanimity. The U.S. decision described allows nine guilty votes out of twelve, but even that decision causes discomfort. Do not turn that one ruling into a blanket approval of any majority verdict. One judge warns that seven to five would be a different matter.

Why might unanimity matter? Think about the juror who disagrees with everyone else at first. If the majority already has enough votes, it can reach a verdict without winning that juror over. If everyone must agree, the disagreement has to be addressed. The study in which an initial minority eventually prevailed gives that concern some substance. The minority might have something worth hearing. Failure to agree also is not automatically an acquittal; the final paragraph will discuss hung juries.

Now consider the number of people deciding the case. The U.S. ruling rejects five guilty votes out of six, saying unanimity matters even more on a small jury. The Canadian decision goes further in criticizing six-member juries in two provinces. Larger juries spend more time discussing the case, consider more factual issues, and remember more essential information. Those are concrete reasons to care about size, not just a preference for a bigger group.

So why tolerate small panels and nonunanimous convictions in military trials if those features worry us in civilian ones? That is where the author takes the comparison. The final paragraph says civilian defendants appear to receive greater protection, then answers the efficiency concern we wondered about at the start: hung juries occurred in no more than 1 percent of the Canadian trials studied. The feared disruption is uncommon. The author also judges the benefits of larger panels worth the added cost.

The ending finally tells us what to do about it: reform military trials to resemble civilian trials more closely, at least during peacetime. That qualification matters. The author leaves room for wartime circumstances to justify some differences. Our main point needs the recommendation, not merely the observation that the two systems differ.