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Constitution and the Criminally Accused Soldier: Is the Door Opening or Closing?

NCJ Number
Army Lawyer Dated: (November 1987) Pages: 28-34
S A Hancock
Date Published
7 pages
The U.S. Supreme Court decision in Solorio v. United States made court-martial jurisdiction contingent solely on the accused person's status as a soldier rather than on the service connection of the charged offense and thereby implies that courts' martial must provide soldiers with the same constitutional protections that are provided for civilians.
The Solorio decision overruled the decision in O'Callahan v. Parker, which found that the rules relating to military courts could be applied only to prosecutions of offenses that were service-connected, because they did not provide a soldier with the same protections afforded civilians. The ambiguity created by the Solorio decision can therefore be used to support litigation involving constitutional protections for the accused soldier. Issues may be raised in the following five areas of constitutional concern: (1) the right to grand jury indictment, (2) the right to bail, (3) the right to a public trial, (4) the right to a unanimous verdict from an impartial jury selected from a cross-section of the community, and (5) the right to an independent judge. The chances for successful litigation in these areas may appear limited, but defense counsel should recognize that a strongly litigated issue with a well-developed record may motivate an appellate court to issue an opinion providing more precise guidance on the line between civilian law and military law. 84 footnotes.


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