The Oklahoma Bar Journal February 2025

defend. In actuality, the rights guaranteed to military members in the pretrial, trial and posttrial stages are probably more protec tive than the rights granted to individual citizens in both the civilian federal and state court systems. 18 For example, the right to counsel for the military member facing court-martial is not only grounded in the Sixth Amendment of the Constitution 19 but also in the UCMJ 20 and the MCM. 21 The right to counsel for members of the armed forces is one of the aspects that is broader than that afforded to most civilians, as all service members have a right to free mil itary counsel regardless of ability to pay or possible sentence. 22 While the topic of military justice may not arise often for most criminal law practitioners, every Oklahoma attorney should be aware of some foundational concepts with the significant military presence that lies within Oklahoma. 23

not “ordinarily” be tried by court- martial or punished by the UCMJ for a same act already punished by civilian state courts. The crimes subject to military justice include any crime contained in the UCMJ, as well as those incor porated through the penumbra of the Assimilated Crimes Act. 26 The need for a separate justice system arose out of the necessity for “good order and discipline” in the armed services and the need for a system of military law with worldwide jurisdiction. 27 Because a member of the armed forces may be stationed overseas, there is a need for world wide jurisdiction. In addition, due to the unique nature of military life, the civilian courts are not equipped to address those mili tary-specific crimes codified such as absence without leave (AWOL), dereliction of duty, conduct unbe coming of an officer, disobedience, adultery, malingering, mutiny, insubordination, contempt toward

THE NECESSITY OF A CRIMINAL CODE WITH

WORLDWIDE JURISDICTION “At least since the harsh days of Gustavus Adolphus, governments have striven to strike a perceived balance of fairness in substantive and procedural law as applied to members of the military force, a balance which primarily takes into account the vital mission of the force itself. Often this balance is described in a specialized criminal code.” – Gen. William C. Westmoreland and Gen. George S. Prugh 24 The Fifth Amendment, the UCMJ and the MCM protect a ser vice member from being tried twice for the same offense in an Article III federal district court and by the Article I military court. As a practice note, the Air Force has extended, by regulation, this “jeopardy” pro tection to trial by state courts as well, 25 and the Army has adopted the policy that prosecutions will

The need for a separate justice system arose out of the necessity for ‘good order and discipline’ in the armed services and the need for a system of military law with worldwide jurisdiction. 27 Because a member of the armed forces may be stationed overseas, there is a need for worldwide jurisdiction.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

14 | FEBRUARY 2025

THE OKLAHOMA BAR JOURNAL