Duquesne Law Review


Irvin M. Kent


On 2 June 1969, a majority of the Supreme Court of the United States in O'Callahan v. Parker decided that, in order to preserve to military personnel the benefits of indictment by grand jury and a trial by a jury of his peers, U. S. Courts-Martial did not have jurisdiction of off-post, non-service connected offenses. There is no doubt that a majority of the Justices of the Supreme Court felt that this decision was essential to preserve these important civil rights for accused servicemen. There is equally no doubt that, as a result of this decision, great numbers of servicemen who would have otherwise been tried by courts-martial, will be tried in a variety of state and federal courts. This decision, therefore, makes timely and urgent a consideration of the practical benefits to an accused of trial in the military and civilian systems. Such a comparison is difficult because the civilian system is not unitary. Rules of evidence and procedure vary between the states, between state and federal practice, and in the latter, between various federal circuits. No attempt can or will be made here to set forth any civilian rule as representing the totality of civilian practice. Rather, the civilian rules cited are merely given as examples of the systems to which servicemen are being increasingly subjected as a result of the decision in the O'Callahan case. To avoid accusation that the civilian rules cited are examples of archaic, obsolete procedures, most of the civilian authorities cited have been deliberately taken from decisions rendered since the date of the Supreme Court's decision. Conversely, in order to avoid an allegation that the military might have reformed its rules because of the impact of O'Callahan v. Parker, most of the military authorities cited ante-date that decision. In a few instances, examples have been taken from military cases and authorities which have come since O'Callahan but in no case do these examples represent a change in the rules as they existed at the time of the Court's decision. In no case has a military rule been cited which has since been changed adversely to an accused person.

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