Courts have declared that unlawful command influence (UCI) is the mortal enemy of military justice.  It undermines the public’s trust in the military justice system and may deny an accused the right to a fair trial.  The typical military accused or defendant may not understand how to identify unlawful command influence, how UCI may impact his or her right to a fair trial, what to do about it if it exists, and how to get rid of it. 

UCI has a devastating effect on the right of a defendant to get a fair trial.  To understand why UCI has that impact and how to handle it, one must understand the history and mechanics of the military criminal trial or court-martial.  Unlike state and federal courts, the military has no standing courts.  There is no courthouse with sitting judges waiting to hear cases and settle disputes between citizens or citizens and the state.  The military system puts the power to settle disputes in the hands of the commander, also known as the convening authority. 

The term convening authority is an important label and description of what happens at a court-martial.  When a commander is notified that there may be a violation of the law, he or she will order an investigation.  The investigation may be completed by any number of agencies or people.  The investigation is supposed to be done by someone who is neutral and has no interest in the matter.  Also, the allegation of misconduct cannot involve the commander.  We will come back to this later.  When the investigation is completed the commander normally receives a recommendation as to the probability of the allegations and decides the next step.  If there is some evidence that an offense was committed, the commander will then refer charges to a court-martial.  Concurrent with the referral, a convening order is published assigning –also called detailing- a prosecutor, defense lawyer, and jurors –called members- to prosecute, defend, and decide the facts of the case.  The commander, therefore, is the authority that creates the trial.  And unlike a state or federal court, all participants in the trial are selected by the convening authority, who also orders the investigation and after the court-martial will decide whether to approve or disapprove a conviction if one is obtained.

The danger at this point should be clear.  The court-martial is not an independent trial.  The participants all rely on an order –convening order- issued by the commander for their authority to participate.  Accordingly, any influence by the commander, the commander’s staff, investigators, or even the perception of influence may cause the trial to become unfair.  For example, if the defense lawyer believes that an aggressive cross examination of a witness who works for the commander or the commander himself may result in a poor performance evaluation, the defense lawyer may hesitate or refuse to zealously represent his client.  Or, if the legal advisor to the commander, known as the staff judge advocate, participates in the investigation of the charges and either becomes a witness against the accused or begins to work to influence the trial to achieve a conviction, it becomes obvious that this same person will not be capable of neutrally advising the commander as he or she is required to do because of their direct participation in the investigation. 

For another example, I will use the commander as the victim of the alleged crime.  When the commander is directly or indirectly the victim of the alleged crime or misconduct, he or she will become known as the accuser.  A commander who is also the accuser is prohibited from convening a court-martial to adjudicate the allegations.  The reason for that should be obvious.  A commander who believes that a certain accused is responsible for some injury, harm, disrespect, or loss that he or she has suffered, he or she will be incapable of neutrally convening, reviewing, and approving a court-martial.  Any time a commander is also an accuser, the charges will be forwarded to the next commander in the chain of command to convene the court-martial.

When a trial has been unlawfully influenced or even if it merely appears that is has been unlawfully influenced, military judges are required to order certain remedies to cure the UCI.  The remedies may involve prohibiting certain people from being involved in the trial up to dismissing the charges. 

The danger of UCI is ever present in the military justice system because of the unique way in which trials are convened and conducted.  An accused and the lawyer representing that accused must be ever vigilant to ensure that there is no real UCI or even an appearance of UCI.