The right to retain civilian counsel at a court-martial is absolute, and neither the military judge nor the panel should treat the presence of civilian counsel as evidence of anything about the accused’s guilt or innocence. The decision to hire private defense representation is a legal right that service members share with every accused person in the American legal system, and instructions to the panel are designed to prevent that decision from being used against the accused.
What happens in practice is more nuanced. Panel members are military officers who operate within a culture that has its own assumptions and norms. The presence of aggressive civilian counsel may be perceived in various ways that no instruction can fully address. Defense attorneys who understand this dynamic calibrate how they present themselves and their client to minimize any potential negative inference while still providing vigorous representation. The goal is not to minimize the presence of civilian counsel but to frame it in a way that serves rather than complicates the defense.
The Absolute Right to Retain Civilian Counsel Under the UCMJ
Article 38 of the UCMJ guarantees the accused in a court-martial the right to be represented by civilian counsel of their own choosing, at their own expense, if that counsel is reasonably available. This right is not subject to command approval, does not require any justification, and cannot be conditioned on any showing that the assigned JAG counsel is inadequate. It is an absolute right that exists regardless of the type of court-martial or the nature of the charge.
The military judge is required to ensure that this right is protected. At the start of any court-martial proceeding, the judge will address whether the accused has secured civilian representation if desired and will verify that the accused’s choice to be represented by a civilian, by an assigned JAG attorney, or by both, is knowing and voluntary. No adverse inference can be drawn from the decision to exercise this right, and no command, supervisor, or institutional actor has any authority to interfere with it.
Whether Panel Members Learn You Have Civilian Counsel
Panel members will learn that the accused has civilian counsel because civilian counsel appear in open court and are identified as such. The military judge typically inquires at the outset about representation, and the identity of both civilian and JAG counsel is established on the record. Panel members who are not sequestered during pretrial proceedings may observe or know about this representation before deliberations begin. There is no practical way to conceal the fact of civilian representation from a panel.
What the panel cannot do is treat the presence of civilian counsel as evidence of guilt, and they receive instructions to this effect. Whether and how panel members actually follow that instruction is a separate question, and experienced defense counsel assess how the specific panel is likely to perceive the defense team as part of their overall trial strategy.
How Command Culture Interprets the Decision to Hire Outside Help
Within the command, the decision to retain civilian counsel is sometimes interpreted through the lens of military cultural assumptions. Commands that view the military justice system as fair and adequate may see civilian retention as suggesting the accused does not trust the system, has something to hide, or is trying to “buy” an outcome that the facts do not support. This perception is unfair and legally irrelevant, but it is a reality of command culture that defense counsel and accused must understand.
The counter to this cultural interpretation is not to avoid civilian representation but to present the decision as a responsible exercise of a legal right in response to serious charges, not as an admission of anything. How the service member, their family, and counsel communicate about the representation within the unit can influence whether the command interprets it as evasion or as the same prudent action anyone facing serious criminal charges would take.
How Panel Members Are Instructed Regarding Defense Counsel Choice
Military judges instruct panels that the fact the accused is represented by civilian counsel, or that the accused chose a particular type of representation, is not evidence of anything regarding guilt or innocence. This instruction is part of the standard framework designed to ensure that the panel evaluates the evidence rather than the resources of the accused. Instructions regarding the presumption of innocence, the burden of proof, and the irrelevance of non-evidentiary factors are all part of the framework that is supposed to insulate the verdict from improper considerations.
The effectiveness of these instructions in practice is a topic of ongoing debate in legal scholarship. Defense attorneys who are concerned about how the panel perceives civilian representation should raise those concerns in voir dire to assess potential bias and to lay the foundation for challenges to panel members who cannot commit to following the judge’s instructions.
How to Frame the Decision Professionally Within Your Unit
A service member who retains civilian counsel should have a brief, confident explanation ready for colleagues and supervisors who ask. The framing should acknowledge the charges without conceding guilt, explain the decision to seek experienced representation as a prudent response to serious allegations, and redirect the conversation toward the process rather than the merits. Something as simple as noting that any person facing serious criminal charges would want experienced representation, and that the decision reflects a commitment to taking the situation seriously, is both accurate and deflects speculation.
Defense counsel can help the client develop this framing before they return to the unit, ensuring that the explanation is consistent, appropriate, and does not inadvertently create problems by being interpreted as a statement about the case’s merits. A client who has a clear and confident answer to the question of why they hired civilian counsel is better positioned than one who appears defensive or evasive when the question arises.
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.