MILITARY JUSTICE PERSONNEL: Military Judge: General Powers

2018 (October Term)

United States v. Lewis, 78 M.J. 447 (a military judge is allowed to draw reasonable inferences from the evidence presented). 

2015 (September Term)

United States v. Bess, 75 M.J. 70 (under RCM 921(b), court members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced; the military judge may, in the exercise of discretion, grant such request). 

(while the military judge has broad latitude to control cross-examination, giving controverted evidence to the factfinder with no opportunity for the accused to examine or cross-examine witnesses or in any way to rebut that evidence in front of the members is unprecedented in our legal system, and cannot be reconciled with due process).

2010 (September Term)

United States v. Lofton, 69 M.J. 386 (the military judge may direct a post-trial session at any time before authenticating the record). 

United States v. Flores, 69 M.J. 366 (in a guilty plea context, a military judge who has advised an accused that she is waiving her right against self-incrimination only to those offenses to which she is pleading guilty cannot later rely on those statements as proof of a separate offense; to do so would compel an accused to incriminate herself in the separate criminal proceeding).

United States v. Jones, 69 M.J. 294 (a military judge’s denial of an accused’s request to review the government’s evidence of child pornography against him prior to and during his providence inquiry did not violate the accused’s Sixth Amendment to make a defense because the accused did not seek to review the evidence to prepare a defense; the accused retained at all times the right to withdraw from the pretrial agreement, plead not guilty, and require the government to prove the offenses against him; the accused sought to review the evidence of child pornography to assist him in pleading guilty, and not to assist him in his defense).

2009 (September Term)

United States v. Morton, 69 M.J. 12 (in cases where offenses are pleaded for exigencies of proof, depending on what the plea inquiry reveals or of which offense the accused is ultimately found guilty, the military judge may properly accept the plea and dismiss the remaining offense).

United States v. Neal, 68 M.J. 289 (in the military justice system, the authority of the military judge in a court-martial does not cease upon the discharge of the members; the military judge retains control over a court-martial until the record is authenticated and forwarded to the convening authority for review; until that point, even after discharge of the members and adjournment of the court-martial, the military judge may take actions such as:  reconsidering rulings (RCM 905(f)); reconvening the court-martial to correct an erroneous sentence announcement, (RCM 1007(b)); calling a session to clarify an ambiguous sentence imposed by either the military judge or the members (RCM 1009(c)); and directing post-trial sessions (RCM 1102); these authorities illustrate that a court-martial does not cease to exist upon discharge of the members, and a case remains in an interlocutory posture so long as the military judge has the power to take action under the UCMJ and RCMs). 

2008 (September Term)

United States v. Wuterich, 67 M.J. 32 (under RCM 703(f)(4)(C), if the person having custody of evidence requests relief on grounds that compliance with the subpoena or order of production is unreasonable or oppressive, the military judge may direct that the subpoena or order of production be withdrawn or modified; under the rule, the military judge may direct that the evidence be submitted to the military judge for an in camera inspection in order to determine whether such relief should be granted). 

(even if a qualified newsgathering privilege applied to cases in the military justice system, such a privilege would not preclude an in camera review by the military judge pursuant to RCM 703(f)(4)(C) under the circumstances where the description of the material at issue -- video outtakes from a specific interview in which appellant discussed the events occurring on the date of and in the place of the charged offenses -- is sufficient to meet a threshold showing of necessity for an in camera review; the military judge could not make an evaluation of necessity under the specific circumstances of this case without reviewing the outtakes for content and context).

2008 (Transition)


United States v. Webb, 66 M.J. 89 (Article 39(a), UCMJ, authorizes military judges to take such action after trial and before authenticating the record as may be required in the interest of justice; before authentication of the record, the military judge has the authority to conduct a post-trial session, set aside findings of guilty and the sentence, and order a new trial for a discovery violation).  


(a military judge does not have authority under Article 73, UCMJ, to order a new trial). 


(prior to authentication, a military judge has authority under Article 39(a), UCMJ, and RCM 1102(b)(2) to convene a post-trial session to consider newly discovered evidence and to take whatever remedial action is appropriate). 


United States v. Harrow, 65 M.J. 190 (the military judge is permitted in a borderline guilty plea case to give weight to the defense evaluation of the evidence). 


United States v. Carruthers, 64 M.J. 340 (the exposure of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination; however, the Confrontation Clause of the Sixth Amendment does not prevent a trial judge from imposing any limits on a defense counsel’s inquiry into the potential bias of a prosecution witness; trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant; the judge may restrict cross-examination when the probative value of the evidence sought would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members).


United States v. Green, 64 M.J. 289 (in a bench trial, a military judge is not precluded from setting forth his reasons for the sentence imposed).


(a military judge may not interject his or her personal beliefs into the sentencing process).


United States v. Deisher
, 61 M.J. 313 (when a servicemember is charged with violation of a lawful order, the legality of the order is an issue of law that must be decided by the military judge, not the court-martial panel). 

(the lawfulness of an order, like other issues of law, may involve questions of fact that must be addressed by the military judge for the limited purpose of resolving the issue of law; the consideration of such factual matters by the military judge in the course of addressing an issue of law is distinct from, and does not preempt, the responsibility of a court-martial panel to address factual matters pertinent to the elements of an offense in the course of returning findings on the issue of guilt or innocence). 

(when the defense moves to dismiss a charge on the grounds that the alleged order was not lawful, the military judge must determine whether there is an adequate factual basis for the allegation that the order was lawful; in the course of acting on such a motion, if the military judge rules that a specific set of words would constitute a lawful order under a specific set of circumstances, that is a preliminary ruling; the military judge’s ruling does not relieve the prosecution of the responsibility during its case-in-chief of proving beyond a reasonable doubt the facts necessary to establish the elements of the offense).  

(the lawfulness of an order is not an element, but is an issue of law to be resolved by the military judge, not members; in this case, the military judge committed prejudicial error in ruling on the motion to dismiss by treating both the issue of lawfulness and the predicate factual aspects of the lawfulness issue as matters to be resolved by the members and by submitting the issue of lawfulness to the members). 


United States v. Quintanilla, 56 MJ 37 (a military judge does not exercise general jurisdiction over cases arising under the UCMJ; a military judge may exercise authority only over the specific case to which he or she has been detailed).

(a military judge may issue a warrant of attachment to compel the presence of a civilian witness, but only under very specific circumstances as set forth in RCM 703(e)(2)(G)(ii); military judges do not have the power to treat non-compliance with a subpoena as a contempt of court).

United States v. Humpherys, 57 MJ 83 (military judges possess ample authority to protect the attorney-client relationship during consideration of disqualification motions, including the power to examine evidence in camera, seal records of any Article 39(a) sessions, exclude unnecessary persons from hearings, and issue protective orders).


United States v. New, 55 MJ 95 (by both the Code and the Manual, the military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings).

United States v. Anderson, 55 MJ 198 (military judge lacks inherent power to compel a victim to undergo nonconsensual examination, but the military judge and a trial counsel can use the persuasive powers of their offices to secure the witness’ consent to such examination).


United States v. Gray, 51 MJ 1 (rejecting claim that military capital sentencing procedure is unconstitutional because the military judge lacks the power to adjust or suspend a sentence of death that is improperly imposed; see United States v. Loving, 41 MJ 213, 297 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

United States v. Biagase, 50 MJ 143 (a military judge, as the “last sentinel” to protect a court-martial from the effects of unlawful command influence, can intervene and protect the proceedings).

United States v. Roth, 52 MJ 187 (sequestration and sanctions for violations of a sequestration order are matters within the discretion of the court, and such matters will be reviewed on appeal under an abuse of discretion standard).

(MRE 615 dealing with exclusion of witnesses from the court room is a rule of evidence which may be relaxed during the sentencing portion of the trial).

(the ultimate sanction of excluding a witness’s testimony should be used ordinarily to punish intentional or willful disobedience of the military judge’s sequestration orders).

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