Here is a post from the Huffington Post that analyzes potential problems with prosecuting civilians overseas in a military court-martial. As some may know, Article 2(a)(10) of the UCMJ was changed in 2006 to provide the military with criminal jurisdiction over civilians who accompany the armed forces during a contingency operation. In light of the defendant's 6th Amendment right to a fair and impartial jury, many have questioned the constitutional viability of this change to the UCMJ. According to the post, the biggest constitutional hurdle with prosecuting civilians overseas by court-martial is the manner by which military juries operate.
First, the Manual for Courts-Martial only requires that the jury consist of five members. The Constitution does not require that a jury contain a certain amount of jurors, but the Supreme Court's decision in Ballew v. Georgia specifically held that a panel of five jurors was insufficient to meet the requirements of the Sixth Amendment. Furthermore, the military justice system does not require a unanimous verdict for a conviction. Again, unanimity is not a requirement for due process to be met, but when coupled with the military's lower numerical requirement for jurors, non-unanimous verdicts could potentially violate constitutional rights of civilian defendants.
The other Sixth Amendment concern is the composition of military juries. While civilian juries are chosen from diverse civilian populations in the district where the trial is to be held, military juries are chosen from active duty members of the military. Courts-martial do allow for a similar voir dire procedure, but this procedure may not be as effective when jurors are chosen from a more homogenized group than would be found in the civilian world. Another concern is that soldiers may harbor ill will towards civilian contractors leading to military juries being more likely to convict a defendant who is a contractor...to continue readng "If the UCMJ Doesn't Fit, You Must Acquit" go here.
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