The military justice system and civilian court systems are separate sovereigns, and a verdict in one does not automatically bar prosecution in the other. The dual sovereignty doctrine, which the Supreme Court has consistently upheld, means that conduct which constitutes both a UCMJ offense and a civilian criminal offense can in principle be prosecuted by both systems without violating the constitutional protection against double jeopardy. An acquittal at court-martial does not prevent a state prosecutor from filing charges based on the same underlying events.
In practice, civilian re-prosecution after a military acquittal is rare but not unheard of, particularly in cases involving serious offenses that occurred near a military installation or in a state with strong interest in the outcome. The defense must assess from the beginning of a case whether civilian charges are a realistic possibility and, if so, how the strategy pursued in the military proceeding might affect what happens if a civilian prosecution follows.
The Dual Sovereignty Doctrine and Why It Allows Successive Prosecution
The constitutional protection against double jeopardy prohibits the same sovereign from prosecuting an individual twice for the same offense after acquittal or conviction. The dual sovereignty doctrine holds that two separate sovereigns can each prosecute for conduct that constitutes an offense under each of their respective laws, without implicating the double jeopardy bar, because each prosecution vindicates the laws and interests of a different legal system.
The military court system is a federal institution. When a service member is acquitted at court-martial, the federal government has had its prosecution. A state government, as a separate sovereign, retains the authority to pursue its own prosecution for conduct that violates state law, even if the same events were the subject of the court-martial. Whether a state will exercise that authority in the wake of a military acquittal is a separate question from whether it has the legal power to do so, and the answer to the practical question varies significantly based on the state, the nature of the offense, and the political environment surrounding the case.
How the Dual Sovereignty Doctrine Applies Between Military and State Court Systems
The dual sovereignty doctrine holds that the same conduct can be prosecuted by two separate sovereigns without violating the Fifth Amendment’s double jeopardy clause, because each sovereign is prosecuting the offense against its own laws. The federal government and each state are separate sovereigns for this purpose, and the military justice system is considered part of the federal sovereign. An acquittal by court-martial for manslaughter does not bar a subsequent state prosecution for the same death under the dual sovereignty principle.
Whether a state prosecutor will actually pursue charges after a military acquittal is a separate question from whether they legally can. In practice, the dual sovereignty doctrine is invoked most often in cases where federal and state authorities disagree about a case’s outcome or where the federal proceeding is perceived as having failed to serve justice. A military acquittal that the community or the victim’s family finds unsatisfactory creates at least a theoretical risk of state prosecution, and defense counsel must assess that risk honestly.
Cases Where Both Military and Civilian Prosecutions Occurred
There are documented cases in which service members acquitted at court-martial later faced state criminal charges for the same underlying conduct. These cases typically arose in situations where the alleged conduct had a strong civilian community connection, where the victim was a civilian, or where the military acquittal attracted public attention that motivated state prosecutors to act. The cases that did proceed to a second prosecution produced varied outcomes, reflecting both the difficulty of prosecuting a case twice and the variation in state law on what elements must be proven.
Defense counsel handling a court-martial case that involves a civilian death or serious injury must assess from the outset whether state prosecution is a realistic possibility, what the state’s law requires for the offense that would be charged, and how the defense strategy in the military proceeding might affect the available options if a state prosecution follows. A statement made at court-martial, an admission in a pretrial agreement, and the findings of the court-martial panel are all potentially available to state prosecutors in a subsequent proceeding.
Practical Likelihood of Civilian Re-Prosecution After Acquittal
The practical likelihood of state prosecution following a military acquittal depends on several factors: the strength of the state’s independent evidence, the degree of public attention the case attracted, the relationship between the military installation and the surrounding civilian community, and the political environment in which the state prosecutor operates. Cases that received significant media coverage, that involved civilian victims with active families, or that were perceived as reflecting systemic problems in how the military handles misconduct are most likely to attract continued state attention after an acquittal.
Defense counsel who are aware of this risk can structure the military defense in ways that protect against the secondary exposure without sacrificing the primary defense. Admissions made in the military proceeding, stipulations of fact, and other concessions that facilitate a favorable military outcome may create evidentiary problems in a subsequent state proceeding. Understanding these tradeoffs requires assessing both the military case and the potential state case from the beginning.
Coordinating Defense Strategy Across Both Systems
When dual-system exposure is a realistic concern, the defense must be managed across both tracks simultaneously. Counsel in the military proceeding and any counsel monitoring state exposure must communicate regularly, ensure that decisions made in the military case do not create unnecessary problems in the state context, and develop a consistent factual narrative that serves the client’s interests in both forums.
This coordination is most critical during the military pretrial phase, when agreements are negotiated and the evidentiary record is being established. The service member who understands from the earliest stage that an acquittal may not end the legal jeopardy they face is better positioned to make decisions that serve their complete legal interests rather than optimizing for the military outcome alone.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.