COURT-MARTIAL NULLIFICATION: WHY MILITARY JUSTICE NEEDS A 'CONSCIENCE OF THE COMMANDER'

摘要

Despite continuing efforts to reform the military justice system to look more like the civilian criminal justice model, the court-martial remains "a strange creature" that "delivers a separate kind of justice."392 Unless and until Congress further modifies military justice, courts-martial will continue to employ different factors applying different laws. A different entity from a jury—court-martial panel members—is called upon to adjudicate the findings and sentence. At their core, courts-martial "are still very much instruments of command authority, and their ultimate purpose is to protect the military effectiveness of the armed forces."393 In this situation, there is no reason why courts-martial need be bound by the same reluctance to instruct on nullification that civilian courts display. Rather, there is every reason why they should take a more permissive approach. The commander still sits in a position of unparalleled power in courts-martial, and if court members do not recognize their power to check the commander, no one will. Court-martial panel members can be trusted to exercise this power responsibly, as their natural tendency to defer to authority, their selection under UCMJ criteria, the lack of required unanimity, and members' general sense of duty will ensure they will not nullify cases frequently or inappropriately. Indeed, the military justice system already trusts court-martial members to perform functions far beyond those given to civilian jurors. A limited nullification instruction would also help balance the fact that service members do not enjoy the Sixth Amendment right to a jury trial, with that right's unanimity and size requirements.