Criminal Law & Procedure: Jurisdiction & Venue:
JurisdictionMembers of the United States
military are subject to a court martial when they commit
offenses that are prohibited by the Uniform Code of Military
Justice (UCMJ). Offenses under the UCMJ may be offenses that
are either federal crimes, such as drug offenses and theft
of government property, or they may be offenses that become
federal offenses because they are committed on a United
States military installation.
A court martial is conducted by each particular branch of
the United States military, that is, the Air Force, the
Army, the Navy, or the Marine Corps. Because the particular
branch is part of the Department of Defense, the court
martial is considered as being conducted by the Department
of Defense. The Department of Justice prosecutes federal
criminal offenses.
The Department of Defense and the Department of Justice
have concurrent jurisdiction over criminal offenses that
involve the Department of Defense, that are committed on
military installations, and that are committed outside
military installations by military personnel. The Department
of Defense and the Department of Justice have therefore
entered into a Memorandum of Understanding with regard to
the investigation and prosecution of such offenses.
The Memorandum of Understanding provides that the
Department of Defense will refer all investigations to the
Federal Bureau of Investigations (FBI) when an investigation
involves allegations of corruption within the Department of
Defense, such as bribery and conflicts of interest. The
investigation may involve military personnel or civilian
personnel within the Department of Defense. The FBI must
promptly notify the Department of Defense if it will
investigate the allegations. Once the investigation has been
referred to the FBI, the Department of Defense must obtain
the approval of the FBI or the Department of Justice before
it may initiate an independent investigation under the UCMJ.
If a fraud has been committed against the Department of
Defense, such as the theft or embezzlement of Department of
Defense property, the Department of Defense has primary
investigative responsibility for the offense. If the
Department of Defense determines that the offense warrants
federal prosecution, it will confer with the Department of
Justice and the FBI. The Department of Defense and the
Department of Justice will decide which department will
continue with the investigation.
A criminal offense that is committed on a military
installation is generally investigated by the installation's
particular military branch. If the offense is committed by a
person who is subject to the UCMJ, that is, by a service
member who is subject to a court-martial, the military will
prosecute the offense. If the offense is committed by a
person who is not subject to the UCMJ and who is not subject
to a court-martial, the Department of Defense will refer the
offense to the Department of Justice for investigation and
prosecution.
When a criminal offense is committed outside a military
installation by a member of the military, which offense is
subject to prosecution under the UCMJ, the Department of
Defense shall investigate and prosecute the offense. If the
offense is related to scheduled military activities outside
the military installation, such as maneuvers, the offense
shall be treated as if it were committed on the
installation. The Department of Defense shall investigate
and prosecute the offense. If the offense is a federal
offense and is not an offense under the UCMJ, the Department
of Defense shall refer the offense to the Department of
Justice for investigation and prosecution.
If the Department of Defense conducts its own
investigation, which investigation may lead to a prosecution
in a federal district court, the Department of Defense shall
conduct the investigation in accordance with the guidelines
of the Department of Justice.
The Department of Defense and the Department of Justice
may conduct joint investigations under certain
circumstances, such as undercover operations. The joint
investigations shall also be conducted in accordance with
the guidelines of the Department of Justice.
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