Inside a Court-Martial Trial: From Opening Statements to Verdict

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A court-martial reaches a verdict by secret written ballot, counted by the most junior member, and it does not require unanimity. Those three facts separate it from a civilian criminal trial more sharply than anything that happens in the courtroom itself.

This page follows a trial from the first session to the announcement of findings, using the articles that govern each step: who presides, which parts happen without the members present, what the judge must tell them before they vote, how the vote is taken, and how many votes convict.

It does not describe how any particular trial ran, and it does not tell anyone how to conduct or respond to one.

Who presides, and who cannot rate him

Article 26 requires a military judge at every general and special court-martial and then insulates that judge from the convening authority.

“(a) A military judge shall be detailed to each general and special court-martial. The Secretary concerned shall prescribe regulations providing for the manner in which military judges are detailed for such courts-martial and for the persons who are authorized to detail military judges for such courts-martial. The military judge shall preside over each open session of the court-martial to which he has been detailed.”

Source: 10 U.S.C. 826 (Article 26), subsection (a).

Qualification runs through the legal chain: under subsection (b) the judge must be a commissioned officer, a member of the bar of a Federal court or the highest court of a State, and certified as qualified “by reason of education, training, experience, and judicial temperament” by the Judge Advocate General of that armed force. Subsection (c)(1) then requires that the judge be designated for detail by the Judge Advocate General.

The insulation is explicit:

“(2) Neither the convening authority nor any member of the staff of the convening authority shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to the military judge’s performance of duty as a military judge.”

Source: 10 U.S.C. 826 (Article 26), subsection (c)(2).

The official who convened the court cannot write or review the presiding judge’s performance report for that duty. That is a structural protection written into the statute rather than a matter of practice.

Sessions without the members: Article 39(a)

Much of a court-martial happens with the panel out of the room, and the Code lists exactly what belongs there.

“(a) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to section 835 of this title (article 35), call the court into session without the presence of the members for the purpose of— (1) hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty; (2) hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members of the court; (3) holding the arraignment and receiving the pleas of the accused; (4) conducting a sentencing proceeding and sentencing the accused under section 853(b)(1) of this title (article 53(b)(1))”

Source: 10 U.S.C. 839 (Article 39), subsection (a).

Four things follow from that list. Motions are resolved here, not in front of the panel. Arraignment and pleas happen here. Sentencing by the judge happens here. And the session is available “at any time after the service of charges”, subject to the Article 35 waiting period.

Subsection (b) fixes who must be present at such sessions: the accused, the defense counsel, and trial counsel.

What an Article 39(a) session is, in the rule

The statute creates the session. The rule says what it counts as, and one sentence in it is worth the whole paragraph.

“Rule 803. Court-martial sessions without members under Article 39(a) A military judge who has been detailed to the court-martial may, under Article 39(a), after service of charges, call the court-martial into session without the presence of members. Such sessions may be held before and after assembly of the court-martial, and when authorized in these rules, after adjournment and before entry of the judgment in the record. All such sessions are a part of the trial and shall be conducted in the presence of the accused, defense counsel, and trial counsel, in accordance with R.C.M. 804, and shall be made a part of the record.”

Source: Executive Order 14130, 20 December 2024, Annex, amending the Manual for Courts-Martial.

“All such sessions are a part of the trial.” That disposes of a common misreading: the absence of members does not make a session preliminary, informal, or outside the proceeding. It is the trial, with the panel absent.

Three other things are in that rule. The session is available after service of charges, which ties it to the same trigger as Article 35’s waiting period. It can run after adjournment and before entry of judgment, so the judge’s authority does not end when the members are released. And attendance is fixed: accused, defense counsel, trial counsel, and the whole of it goes into the record.

Who decides what during the trial

Article 51(b) divides the work in one sentence, and the division is near-absolute.

“(b) The military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused is final and constitutes the ruling of the court, except that the military judge may change a ruling at any time during trial.”

Source: 10 U.S.C. 851 (Article 51), subsection (b).

The judge’s ruling is the ruling of the court. The members do not vote on it. One issue is carved out, the factual issue of mental responsibility, and the judge retains power to change a ruling at any time during trial.

What the members are told before they vote

Article 51(c) requires instructions in the presence of the accused and counsel, and specifies their content.

“(c) Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them— (1) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt; (2) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted”

Source: 10 U.S.C. 851 (Article 51), subsection (c).

The standard is the familiar one, and the statute states it rather than leaving it to rules: guilt established “by legal and competent evidence beyond reasonable doubt”.

How the vote is taken

“(a) Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.”

Source: 10 U.S.C. 851 (Article 51), subsection (a).

Three procedural facts are in that passage. The ballot is secret and written. The junior member counts. The president checks the count and announces the result to the members.

There is no deliberation-to-unanimity requirement in the article, and no provision for a hung panel in the civilian sense, because the threshold is a proportion rather than a consensus.

How many votes convict

Article 52 sets the threshold, and it is not unanimity.

“(a) In General.—No person may be convicted of an offense in a general or special court-martial, other than— (1) after a plea of guilty under section 845(b) of this title (article 45(b)); (2) by a military judge in a court-martial with a military judge alone, under section 816 of this title (article 16); or (3) in a court-martial with members under section 816 of this title (article 16), by the concurrence of at least three-fourths of the members present when the vote is taken.”

Source: 10 U.S.C. 852 (Article 52), subsection (a).

So conviction by a panel requires at least three-fourths of the members present when the vote is taken. Combined with the impanelling numbers in Article 29, that is a concrete arithmetic: eight members in a noncapital general court-martial, four in a special court-martial, and the fraction applies to those present at the vote.

Other matters are decided differently. Under subsection (b)(1), except as provided elsewhere, “all matters to be decided by members of a general or special court-martial shall be determined by a majority vote”, with a lower threshold permitted for reconsideration that would reduce a finding or a sentence. Subsection (b)(2) treats sentencing separately, and a sentence of death carries its own requirements.

Who sentences, and why that changed

Article 25(d)(1) moved sentencing off the panel, with capital offenses excepted: “Except as provided in paragraph (2) for capital offenses, the accused in a court-martial with a military judge and members shall be sentenced by the military judge.”

That is why Article 39(a)(4) lists a sentencing proceeding among the things done without the members present. In a case tried by a panel, the members decide guilt and the judge decides the sentence, unless the case is capital.

What this page does not decide

How evidence is admitted or excluded. That is governed by the Military Rules of Evidence, which this page did not open, and litigated through pretrial motions.

The order of witnesses, the form of opening statements, or the conduct of examination. Those are prescribed in rules under Article 36 rather than in the Code.

What any verdict means for a particular person. Findings are announced; what follows them is in after a court-martial conviction.

Where to go from here

How the panel that votes was selected is in how a court-martial panel is chosen, and the first courtroom event in the case is arraignment. For the cast in the room, see who is who in a court-martial.

Sources

What this page did not open. The Manual for Courts-Martial and the Military Rules of Evidence were not opened, and the conduct of a trial is prescribed there. No court decision was opened.

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.

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