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Inside the military trial of Major Nidal Hasan

August 9, 2013 by Geoffrey Corn


This week, the court-martial of Nidal Hasan commenced four years after he allegedly killed 13 soldiers at Fort Hood, Texas. Hasan, an Army psychiatrist, has declared at his trial that he was the shooter. If that's the case, many ask, why do we need this expensive trial during which Hasan will be able to cross-examine his victims?

Nidal Malik Hasan
Nidal Malik Hasan

Geoffrey Corn, a professor at South Texas College of Law and a former JAG Officer who served as chief of the law of war branch of the U.S. Army, explains what makes a court-martial different from a civilian trial and why the Army is having a trial when the facts seem so apparent.


The general court-martial of Major Nidal Hasan for the 2009 mass murder at Fort Hood is providing the public with an unprecedented insight into the U.S. military justice system.

That term, military justice, is often assumed to be an oxymoron, with justice simply incompatible with military trials. However, the Hasan case is demonstrating that the rights and protections afforded military defendants are as robust – indeed often more robust - than those afforded their civilian counterparts.

Nonetheless, there are and will almost certainly continue to be significant difference between these two distinct systems of criminal justice, and understanding these differences is important to understand the true nature of the process playing out by the day at Fort Hood.

One fundamental aspect of both systems has been central to much of the recent discourse on this trial: that any individual accused by the state of a crime is presumed innocent, and that this presumption must be rebutted by evidence that proves every material element of the charge beyond a reasonable doubt.

There is no doubt that many in the public view Hasan as an obviously guilty defendant, and they are perplexed as to why the process of bringing him to justice is so complicated and drawn out.

The answer to that question, as it must be in all criminal trials, is central to our conception of justice: No matter how obviously guilty a defendant may be as a factual matter, he benefits from a legal presumption of innocence until his guilt is established by relevant evidence at trial.

Prosecutors do not prove guilt by pointing out to a jury that it is “obvious” the defendant is guilty. Instead, they must offer evidence to satisfy that burden. This is the essence of due process and the accordant burden of proof, and it is no different in a military court than in a civilian court.

That burden requires that the prosecution produce the evidence necessary to prove each and every element of each and every charge, and that this evidence effectively persuades the finder of fact (in most cases a jury) that there is only one fair and rational hypothesis supported by the totality of the evidence: guilt.

That is the ultimate meaning of proof beyond a reasonable doubt, and the ultimate protection afforded by the Due Process clause of our Constitution.

How the military court system works

So why can’t Major Hasan simply plead guilty if, as we know now, he is not even contesting his guilt?

The answer reveals the first unique aspect of military law. Unlike civilian jurisdictions, a plea of guilty to a capital offense is prohibited by the Uniform Code of Military Justice, the U.S. military code of criminal law and procedure enacted by Congress pursuant to its constitutional authority to make rules for the land and naval forces.

There is no doubt that this rule, as in the case of Major Hasan, results in a more laborious process for convicting a defendant of a capital offense in a military court. However, this was a price Congress was obviously willing to pay to ensure that before a member of the Armed Forces is exposed to the grave risk of capital punishment, his guilt was adjudged not by a judge based on a plea of guilty, but instead by a unanimous verdict by a jury composed of at least 12 military members.

Who may serve on such a jury is another fundamental difference between civilian and military practice.

In the military, there is no right to a jury of peers. Instead, the jury, properly termed the panel of members, is selected pursuant to statutory criteria established by the UCMJ. These criteria include rank, age, experience, education, and judicial temperament.

Each juror also must outrank the accused. It is the commanding officer (in most cases a General or Admiral) who orders the case to be tried by court-martial that selects the panel members, an aspect of the system that is frequently condemned as fundamentally unfair and indefensible.

Proponents of the system emphasize the liberal granting of causal challenges - a significant feature of selecting the actual trial panel - offsets the risk of “stacking the deck” against an accused. And, many defense practitioners who have appeared before military and civilian juries indicate a preference for military juries, primarily because of the maturity and judgment they routinely bring to bear. Ultimately, because the Supreme Court has upheld this jury selection process, modification will require an amendment to the UCMJ by Congress.

Inside the military trial jury room

The process of deciding the accused’s fate is another illustration of the enhanced procedural protection for military defendants.

As is well-known, the unanimous verdict requirement is a significant feature of almost all U.S. civilian criminal systems. This means that jury unanimity is required for a guilty or not guilty verdict. And, if unanimity can’t be reached, the trial will terminate with a mistrial as the result of a deadlocked jury.

This is not the case in military practice. First, with the exception of capital offenses, a unanimous verdict is never required. Instead, a two-thirds majority is required for conviction of any offense with a maximum authorized penalty of less than 10 years, a three-fourths majority for those with a maximum of more than 10 years.

However, the most striking feature of the military verdict voting process is that every case ends in a judgment of guilt or acquittal. Unlike the civilian system, there is no minimum vote requirement for acquittal.

Instead, after fully deliberating a charged specification (each individual criminal count), the members are instructed to vote by secret written ballot. When the ballot is counted, if the required number of votes for guilt is achieved, the outcome on that specification is guilty. If, however, the required number of votes fails – even by one vote – the outcome on that specification is not guilty. Furthermore, the members may not take a “re-vote.” There is one vote, and one outcome.

Using the Hasan case to illustrate this unique military rule highlights how this provides a much more robust protection for the presumption of innocence than in civilian jurisdictions.

The required vote for guilt on each of the 13 murder counts is a unanimous vote of all 13 members. If, upon voting, the outcome is 12 for guilt, and 1 not guilty, the outcome is not guilty on that count. There is no requirement that the not guilty vote be unanimous for acquittal.

Thus, if the prosecutor fails to persuade just one juror, the presumption of innocence remains intact.

The attempted murder counts require a three-fourths majority. Therefore, a guilty verdict on these counts requires 10 votes for guilt. Thus, if 9 members vote for guilt, but only four vote not guilty, the outcome is acquittal.

While this is a highly unlikely outcome in this case, the illustration reveals why there is no such thing as a deadlocked jury in military practice, and how an accused’s presumption of innocence prevails whenever the prosecution fails to persuade the required number of jurors an accused is guilty.

Once convicted of any offense, the trial enters a sentencing phase where the prosecution offers aggravating evidence and the defense extenuating and mitigating evidence.

This phase the trial occurs immediately following the conviction, with no substantial delay while a pre-sentencing report is prepared. If the accused selects trial by a military jury, the same jury decides the sentence; if the accused selects trial by military judge, the judge selects the sentence.

However, unlike most civilian jurisdictions, a military accused may choose to plead guilty before a judge, but still demand a military jury for sentencing. When deliberating on sentence, military juries are instructed to consider a range of considerations, including rehabilitation of the accused and the interests of good order and discipline in the armed forces.

With the exception of the most severe offenses (such as spying and capital murder), there are no mandatory minimum sentences or sentencing guidelines. Every case involves indeterminate sentencing, with the sentencing authority (judge or jury) required to consider the full range of permissible sentences, from no punishment to the maximum authorized by the UCMJ. After deliberating, the military jurors each propose a sentence, and these proposals are arranged from least to most severe. The jury then votes from least to most severe, and once the requisite number of votes is received for a proposal, that is the sentence. They never vote on the more severe sentence proposals. This is intended to ensure the least severe acceptable sentence is the one adjudged.

The appeals process

Finally, before the case is ever submitted for appellate review by the military (and in some cases civilian) appellate courts, the commander who ordered the case tried by court-martial must consider a clemency petition.

This petition may include new evidence, or evidence not admissible at trial. The most significant feature of this clemency process is that the court-martial outcome is not final until approved by the commander, who has plenary authority to take any action that lessens the severity of the outcome for the accused, but may never make the outcome more severe.

In other words, the court-martial judgment is the maximum penalty that may be imposed on the accused (even if the commander who ordered trial considers it far too lenient), but the commander may always grant any form of clemency he or she feels appropriate.

There are other aspects of the system that are unique. However, these critical differences indicate the lengths to which Congress and Presidents through rule making authority granted them by the UCMJ have gone to ensure a fundamentally fair criminal justice process for members of our armed forces.

There is simply nothing oxymoronic about military justice, and Major Hasan, like all other military defendants, is the beneficiary of these rules and fundamental constitutional protections (like the right to self-representation) applicable to military and civilian defendants alike.

While many may believe he is unworthy of such process, those who understand the military justice system (or the criminal justice system writ large) know that how we treat the most obviously guilty accused is the true touchstone of legitimacy for any system of justice. By that measure, this is a system that deserves genuine respect.

Next week, Corn will be doing a follow-up to discuss how the trial is unfolding. You can Tweet questions and responses to the piece @ConDailyBlog using #Hasancourtmartial or comment below.

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