Tuesday, August 14, 2018

A Military Trial in the Old West...Fiction of course

Military Trials in the 1880’s


As I am finishing up the final chapters of my third novel in The McCades of Cheyenne Series, Dawson’s Haven, I had to begin researching what a military trial would encompass in the late 1800’s. It seems my hero, Dawson McCade, and his side-kick, Indian friend, Leaning Bear have been wrongly accused of crimes they have not committed and are potentially facing a huge trial with the end for them a firing squad if they cannot prove their innocence. As I have panstered through what will happen, I realized that I needed to take a look at how a military trial would have taken place in that day and time. So in my research I found the following:

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Any form of military trial involved a potential Court-Martial and ranged from very mild fines all the way to the death penalty of hanging or firing squad in the 1800s. A court-martial was a criminal trial for members of the military who were accused of committing certain crimes such as larceny, arson, manslaughter or conspiracy just as in civilian trials. Others, such as desertion, mutiny, and insubordination, were specifically tied to military service as they are today.

Various Court-Martials within the Military of the late 1800’s were summarized by the following:

Summary Courts-Martial: A quick procedure for enlisted members accused of minor offenses. These did not require a military judge or attorneys. It involved one commissioned officer who reviewed the facts and sentencing guidelines before making a final decision. Sentencing of a guilty verdict might have involved a 30 day confinement, 45 days of hard labor, restriction to a particular area for 60 days, one month of reduced pay, or reduction in rank to name a few.


Special Courts-Martial: was reserved for more severe offenses. A military judge would have presided over special courts-martial; a defense attorney would have been assigned to the accused and a trial attorney would have been assigned to the prosecution. A three service member panel decides the facts of the case unless the accused specifically requests a judge to do so. The maximum penalties that can be assigned in a special court martial include one year of confinement, six months pay forfeiture, three months hard labor, or a bad-conduct discharge.


General Courts-Martial: how most severe offenses were prosecuted. Like special courts-martial, they featured a military judge as well as legal representation for both parties. A panel of at least 5 members for non-capital offenses and at least 10 members for capital offenses decided the facts unless the accused requests a judge to do so and the death penalty was not being sought. The military judge presiding over the general court-martial could impose the maximum sentences allowed, including death, life imprisonment, or dishonorable discharge.

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Initiating Charges

When a service member had violated some law or committed a crime, the subject would be detained for up to 72 hours while it was decided how to proceed. The service member could appeal the decision if he believed that the punishment was unjust. However, if it was decided to proceed with a court-martial, there were120 days to act. The convening authority might have been the President, the Secretary of Defense, or the Secretary of the military branch to which the accused belongs.


The court-martial process would have begun with the accused being read the charges against him in the presence of a commanding officer and a neutral third officer. A military judge and legal representation for both sides would have been assigned. The accused and the prosecution would have had the opportunity to investigate the facts behind the case, including reviewing documents and conducting depositions.



After charges were preferred, the accused would enter a plea. A guilty plea would only be accepted if the military judge was satisfied that the accused fully understood the charges against him and the consequences; and the prosecution would not be seeking the death penalty. Once the guilty plea was accepted, the accused would have been sentenced.



If the accused entered a not-guilty plea and the court-martial went to trial, a panel would have been chosen to decide the facts. Members of the panel were commissioned officers from a different unit and of a higher rank than the accused. The accused was allowed to request enlisted service members join the panel if desired. Oaths were then dispersed. Each side presented their evidence and cross-examined witnesses. The military judge would have instructed the panel on the applicable laws in relating a verdict. If the accused is found guilty, either the panel or the military judge will sentence the accused according to the sentencing guidelines.

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The rights for the accused:

  1. The right to be informed of the charges.
  2. The right to remain silent, as in the accused could not be forced to incriminate themselves.  
  3. The right to defense counsel and protection against double jeopardy. A service member could have been court-martialed and tried in a civilian court for the same action.
    The accused could appeal the outcome of a court-martial to the military court of appeals if the accused believed that the military judge made an error of laws. In cases where the accused is sentenced to the death penalty, the court-martial is automatically appealed but the final court decision held.
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