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Understanding Article 118, UCMJ – Murder

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Murder is one of the most serious charges a person–military or civilian–can face. While most people think that murder is limited to only premeditated killings, that’s not always the case in the military. So what are the different types of murder under the Uniform Code of Military Justice (UCMJ)? What are the possible punishments for each? And, most importantly, how do you defend against such a charge? Find out these answers, and more, below.

MJA has defended service members facing investigation, court-martial, and discipline for the most serious offenses under the UCMJ, including murder. Contact one of our military defense lawyers today to learn more.

Article 118, UCMJ (Murder)

Any person subject to the UCMJ who, without justification or excuse, unlawfully kills a human being is guilty of murder.  There are four ways murder can occur under the UCMJ:

Premeditated Murder

  • That a certain named or described person is dead;
  • That the death resulted from the act or omission of the accused;
  • That the killing was unlawful; and
  • That, at the time of the killing, the accused had a premeditated design to kill.

Intent to Kill or Inflict Great Bodily Harm

  • That a certain named or described person is dead;
  • That the death resulted from the act or omission of the accused;
  • That the killing was unlawful; and,
  • That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.

Act Inherently Dangerous to Another

  • That a certain named or described person is dead;
  • That the death resulted from the intentional act of the accused;
  • That this act was inherently dangerous to another and showed a wanton disregard for human life; and,
  • That the accused knew that death or great bodily harm was a probable consequence of the act; and,
  • That the killing was unlawful.

During Certain Offenses

  • That a certain named or described person is dead;
  • That the death resulted from the act or omission of the accused;
  • That the killing was unlawful; and,
  • That, at the time of killing, the accused was engaged in the perpetration or attempted perpetration of burglary, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson.

Murder Explained

The difference between premeditated murder and unpremeditated murder comes down to intent.  Premeditation means that the thought of taking a life was “consciously conceived and the act or omission by which it was taken was intended.”  This requires that the person form a “specific intent to kill someone” and “consideration of the act intended.”  Premeditation does not necessarily mean that the murder was planned out long in advance—once a “fixed purpose to kill has been deliberately formed, it is immaterial how soon afterwards it is put into execution.”

Defenses

Rule for Court-Martial (R.C.M.) 916 provides defenses to murder.  These include justification (that the death caused was in the proper performance of a legal duty and is justified and not unlawful), obedience to orders, self-defense, accident, and lack of mental responsibility.

Voluntary intoxication (either by drugs or alcohol) is not a defense but may be admitted to raise reasonable doubt about the existence of actual knowledge, specific intent, willfulness, or premeditation. Voluntary intoxication may reduce premeditated murder to unpremeditated murder, but it will not reduce murder to manslaughter or any other lesser offenses.

An experienced military attorney will be able to evaluate your case to determine what defense may apply and what evidence is needed to support that defense. An accused’s abillity to raise a defense may be limited by the facts or law, or may become difficult to raise if the service member provides a statement to law enforcement during the investigation.

Maximum Punishment

The maximum sentence for premeditated murder or murder committed during certain other offenses is death.  Both charges carry a mandatory minimum sentence of imprisonment for life with the eligibility for parole.  The maximum sentence for unpremeditated murder under Article 118(2) or (3) is such punishment other than death as a court-martial may direct.

Pretrial Confinement

Service members suspected of murder are often placed in pretrial confinement pending court-martial. This is a devastating punishment which significantly impacts a service member’s ability to prepare for trial. What’s worse, it prevents them from being with loved ones when it matters most. Service members held in pretrial confinement beyond their end of active service (EAS/ETS) are not entitled to pay and allowances while in confinement.

Any commissioned officer may order any enlisted person into pretrial confinement. Officers may only be ordered into pretrial confinement by their commanding officer. Within 7 days of the imposition of pretrial confinement, a “detached and neutral” officer is required to independently review the confinement decision. The officer may order that the service member be released from pretrial confinement. Later, the military judge assigned to the case may also order their release.

MJA has successfully fought to have service members released from pretrial confinement confinement for some of the most serious UCMJ offenses, including murder. When properly litigated, a service member unlawfully confined may be entitled to significant sentencing credit and even back pay.

Know Your Rights

The decisions you make while under investigation will directly impact your likelihood for success at trial. Here are some key rights you can, and should, invoke:

Right to remain silent. Service members have an absolute right to remain silent if questioned about a suspected UCMJ violation. Providing a statement to law enforcement almost never helps and may result in additional charges. If the statement you make is different from that of the alleged victim, you may be charged with making a false official statement or obstructing justice. “Cooperating” with law enforcement won’t prevent the command from taking adverse action against you–it just makes the government’s case stronger.

Right to refuse consent. There is also no obligation to consent to any search or seizure of your person or property. If investigators have probable cause to believe that there is evidence of a crime in a certain location, they must obtain an authorization from your commander before conducting a search. Absent probable cause, the only way law enforcement can search or seize your property is with your consent. Providing consent gives law enforcement the right to search your phone, vehicle, residence, or person for evidence which they intend to use against you. Don’t be fooled.

Right to counsel. Service members suspected of a crime have the absolute right to consult with an attorney, military or civilian, before waiving their rights. It is crucial to consult with an attorney if you are suspected of a crime. Remember that no matter the specific legal circumstances you are facing, you are entitled to legal counsel and should utilize it.

Protect Your Freedom and Your Military Future

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, trial, and discipline for the most serious offenses under the UCMJ, and will ensure that every avenue of defense is aggressively pursued on your behalf.  Contact MJA today on our website or call us at (843) 773-5501 for a free consultation.

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