Members of the military often believe they cannot be prosecuted in both the military courts and civilian courts. Most have heard of the concept of double jeopardy. However, civilian criminal law and the UCMJ are similar but different. In this article we discuss double jeopardy, civilian courts and the UCMJ.
Over the years we’ve had several clients call us and say they’ve been convicted of a crime in civilian court and that the military wants to prosecute then for the exact same thing. isn’t that double jeopardy? That’s a great question. You see this often in domestic violence cases and yes, the military can prosecute. The reason for this is called dual sovereignty and the Supreme Court had a case about this recently. It ruled that if federal law enforcement misses on a case the states can then pick it up. The same is true with the military and the UCMJ. If the case falls in a different area geographically and jurisdictionally then the military can pick it up.
That doesn’t sound fair, and some of the military branches including the Air Force have policies in place that prevent a military prosecutor from coming after you for the same thing you’re facing state charges for unless they get permission from the T-Jag of that particular branch.
However, policies are not law. Whether cases are accepted are not often depend on the seriousness of the offense and whether or not the military prosecutor believes the conviction was too light, whether or not they believe they could “do better,” whether or not they just want to “stack” it, and occasionally it comes down to the just not liking the military member.
The bottom line? Often military prosecutors can prosecute a crime that was tried in civilian courts. As a matter of policy they must get permission from the civilian court and if they ask they will usually get it. If you are in fact being prosecuted by the military for the same exact charges you’re being prosecuted for in the state call us at Shewmaker and Lewis. We can provide you with valuable information that you may not be aware of.