The Military Prosecutor: What Trial Counsel Does, and Its Limits
On this page
- The duty, in one sentence
- Who may hold the office
- Limit one: the prosecutor does not create the case
- Limit two: the prosecutor does not rule on anything
- Limit three: nobody in the chain may lean on the proceeding
- Limit four: for covered offenses, the decision is not the command’s at all
- What this page does not decide
- Where to go from here
- Sources
The Uniform Code of Military Justice gives the military prosecutor’s duty in one sentence, and then spends several other articles limiting what the office can reach. Trial counsel prosecutes and keeps the record. Trial counsel does not decide whether the case exists, does not decide what forum hears it, and for an entire class of offenses does not hold the prosecutorial decision at all.
This page sets out the duty from Article 38(a), the qualification standard from Article 27, and then the limits, which are the more informative half. The last of them is recent and it moved authority to a different office.
It does not assess any prosecution, and it does not tell anyone how to respond to one.
The duty, in one sentence
“(a) The trial counsel of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of the proceedings.”
Source: 10 U.S.C. 838 (Article 38), subsection (a).
Two duties, and the second is easy to overlook. Prosecution is “in the name of the United States”, not in the name of the command that convened the court. And preparation of the record is a duty owed “under the direction of the court”, which puts the prosecutor’s clerical function under judicial rather than command control.
Article 35(a) adds a third: trial counsel “shall cause to be served upon the accused a copy of the charges and specifications referred for trial.”
Who may hold the office
Article 27 details trial counsel and defense counsel together, in one clause, and then sets the qualification for a general court-martial.
“(a)(1) Trial counsel and defense counsel shall be detailed for each general and special court-martial.”
Source: 10 U.S.C. 827 (Article 27), subsection (a)(1).
For a general court-martial, counsel must be a judge advocate who is a law-school graduate or a member of a Federal or State high-court bar, and must be “certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member.”
Article 27(a)(2) then bars a person who, with respect to a case, has served as a preliminary hearing officer, court member, military judge, military magistrate or appellate judge from later serving as trial counsel or assistant trial counsel in that case. For the prosecution side there is no waiver; the accused may request a person otherwise barred from acting as defense counsel, but nothing permits the government to reach past this bar. A second sentence in the same paragraph bars anyone who has acted for the defense from later acting for the prosecution in that case, and bars the reverse, with no waiver in either direction.
Limit one: the prosecutor does not create the case
Charges are preferred under Article 30 by a person subject to the Code, who swears the matters are true to the best of their knowledge and belief. Trial counsel has no role in that act, and the detail is in preferral of charges.
Referral, the decision that sends charges to a specified court-martial, is likewise not trial counsel’s. For a general court-martial it cannot happen without written advice from a staff judge advocate, set out in the staff judge advocate.
So the office receives a case; it does not open one.
Limit two: the prosecutor does not rule on anything
Article 51(b) reserves every question of law and every interlocutory question to the military judge, whose ruling “is final and constitutes the ruling of the court.” Objections are made by counsel and decided by the judge.
Article 46 puts the two sides on the same footing for gathering evidence:
“(a) Opportunity To Obtain Witnesses and Other Evidence.—In a case referred for trial by court-martial, the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.”
Source: 10 U.S.C. 846 (Article 46), subsection (a).
“Equal opportunity” is the statutory standard, and it is symmetrical on its face.
Limit three: nobody in the chain may lean on the proceeding
Article 37 restricts what a convening authority or commanding officer may do around a court-martial, and two of its prohibitions bear directly on how a prosecution may be pursued.
“(a)(1) No court-martial convening authority, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding.”
Source: 10 U.S.C. 837 (Article 37), subsection (a)(1).
“(2) No court-martial convening authority, nor any other commanding officer, may deter or attempt to deter a potential witness from participating in the investigatory process or testifying at a court-martial.”
Source: 10 U.S.C. 837 (Article 37), subsection (a)(2).
The article also addresses a specific argument in advance: “[t]he denial of a request to travel at government expense or refusal to make a witness available shall not by” itself constitute a violation, which tells you the boundary was litigated enough to be written down.
The protection covers “counsel” as well as the court, so it runs to both sides.
Limit four: for covered offenses, the decision is not the command’s at all
Article 24a created an office with exclusive prosecutorial authority over a defined class of offenses, and the powers listed are the ones a convening authority previously exercised: to withdraw or dismiss charges, to refer them to a special or general court-martial, to enter into a plea agreement, and to determine whether an authorised rehearing is impracticable.
A determination to refer “shall be binding on any applicable convening authority”, and a commander may not refer a covered offense to a special or general court-martial even where the special trial counsel declines to act. The allocation is set out in convening authority.
Article 53a(a)(3) carries the same split into bargaining: for charges over which a special trial counsel exercises authority, a plea agreement “may only be entered into between a special trial counsel and the accused.”
What this page does not decide
Whether a prosecution was properly conducted. That is judged on a record against standards this page has not opened.
What professional obligations trial counsel carries beyond the statute. Those come from rules of professional responsibility, not from the Code.
Whether particular conduct amounted to unlawful influence under Article 37. The article states prohibitions; whether one was breached is litigated.
Where to go from here
The other side of the courtroom is in the right to a military defense lawyer, and the full cast with its separations is in who is who in a court-martial. For where the prosecutor’s duties fall in the sequence, see inside a court-martial trial.
Sources
- 10 U.S.C. 838 · Article 38, Duties of trial counsel and defense counsel · the duty to prosecute in the name of the United States and to prepare the record
- 10 U.S.C. 827 · Article 27, Detail of trial counsel and defense counsel · the detailing duty, the qualification standard, and the role bar
- 10 U.S.C. 837 · Article 37, Command influence · the prohibitions on censure and on deterring witnesses
- 10 U.S.C. 846 · Article 46, Opportunity to obtain witnesses and other evidence · the equal-opportunity standard
- 10 U.S.C. chapter 47 · the Code in full · Articles 24a, 30, 35, 51 and 53a, referred to above
What this page did not open. The Manual for Courts-Martial was not opened. Rules of professional responsibility applicable to judge advocates were not opened. No court decision on unlawful command influence was opened, and that body of law is substantial.
Checked on 19 September 2026, and checked for currency as well as for accuracy. Every statutory provision cited on this page was traced to the current United States Code: where a provision has not been amended since the 2023 edition, that edition’s text is the current text and its amendment record was read to confirm it; where a provision was amended by Pub. L. 118–159 (23 December 2024) or Pub. L. 119–60 (18 December 2025), the current text is quoted above and the amending Act is named beside it. The two Acts’ own texts were read to establish the complete list of provisions in this chapter that they changed. This was done through the Cornell mirror of the Code and through the Acts as published by the Government Publishing Office; the House preliminary Code could not be reached from here, so no third source confirms it. No independent expert review has taken place yet, and this page says so rather than implying one.