Can You Be Convicted in Civilian and Military Court? Is That Double Jeopardy?

By Carlos Gamino

If you’re a member of the Wisconsin National Guard or another military reserve component, can you be tried by both the military and civilians? It’s a common question – and one that gets “barracks lawyers” debating for hours. Here’s what you need to know about military and civilian trials, and why some people think (incorrectly) that that’s double jeopardy.

Is Being Tried by the Military and Civilians Considered Double Jeopardy?

First things first: Double jeopardy refers to a situation in which the state prosecutes a person twice for the same events. That means if you’re accused of committing a crime, the state tries you, and the state acquits you (finds that you’re not guilty), they can’t put you on trial for the same crime again. Your right to remain safe from being subject to double jeopardy is enshrined in the Fifth Amendment to the Constitution. There are some caveats, though – and that includes situations that involve the military.

If you’re in the military, you’re subject to the Uniform Code of Military Justice as well as to civilian laws. When local authorities and the military want to bring charges against you, they both can. Likewise, even if you’re acquitted in civilian court, the military can bring charges against you (and vice-versa).

What is Article 44 of the UCMJ?

Article 44 of the UCMJ says, “No person may, without his consent, be tried a second time for the same offense.” However, that only applies to the military. It means the military can’t try you twice for the same offense.

Tip: Article 44 doesn’t apply to adverse administrative actions. It only applies to judicial criminal proceedings. If you’re subject to non-judicial punishment, you can still be subject to a court-martial.

Separate or Dual Sovereignty

The state of Wisconsin is a separate entity from the military, which means that if civilians try you for any crime, the military can try you for it, too. That’s why, when people get into trouble for something like an OWI or shoplifting, or they pick up prostitution or child pornography charges between drill weekends, they hope that the military doesn’t find out about it.

What to Do if You’re in the Guard or Reserves and You’re Arrested

If you’re in the military, you could face two trials – one from civilians and one from the military. Even if the civilian court convicts you, the military can try you again for the same crime. (In fact, the military often does try people for the same crime so it can impose its own penalties, such as loss of rank or time in Leavenworth.) You probably want to call an attorney to help you with the civilian side of things; your case is likely to go through civilian court before or at the same time as it’s moving through the military justice system.

If you’ve been arrested for any crime, we may be able to help you. Call us at 414-383-6700 now to talk to a caring, knowledgeable and experienced professional who can point you in the right direction.

Carlos Gamino