Using precedent well in front of a military judge starts with knowing the chain of authority that judge must follow. Military justice has its own appellate hierarchy, and the force of any case an attorney cites depends entirely on where that case sits in it. The craft is matching the right kind of authority, binding or persuasive, to the court being addressed.
The hierarchy that gives precedent its weight
Military courts form a clear ladder, and precedent flows down it:
- Courts-martial are the trial courts, the courts of original jurisdiction.
- Service Courts of Criminal Appeals (such as the Army, Navy-Marine Corps, Air Force, and Coast Guard courts) are the intermediate appellate level, reviewing court-martial results within their branch.
- The Court of Appeals for the Armed Forces (CAAF) sits at the top of the military system, a five-judge civilian Article I court whose decisions set precedent that guides the lower military courts in interpreting the UCMJ across all branches.
- Above CAAF, the U.S. Supreme Court can review cases by certiorari.
So a decision’s authority is positional: CAAF binds the courts below it; a service court binds courts-martial in its own branch; Supreme Court constitutional rulings bind everyone.
Binding versus persuasive, and why it matters
That ladder translates directly into how an attorney argues. Binding precedent, a holding from a court above the one being addressed, must be followed, so it is cited as controlling. Persuasive precedent, such as a sister service’s court decision or a non-controlling opinion, can only invite the judge to agree, so it is cited for its reasoning, not its command.
A skilled advocate is precise about the difference: presenting binding authority as binding, and persuasive authority honestly as persuasive, because mislabeling either erodes credibility with the judge.
Putting it to work
In practice, the attorney finds the most authoritative case on point, shows how its facts and holding map onto the present case, and frames it for the court being addressed: controlling if it comes from above, instructive if it comes from elsewhere. Where authority cuts the other way, counsel distinguishes it on the facts or law rather than ignoring it.
If a sister service’s appellate decision favors the client, the attorney can cite it as persuasive, while reserving binding force for a ruling from a court above the one being addressed.
The practical upshot is that precedent before a military judge is about hierarchy and honesty. Know where a case sits, CAAF and the Supreme Court at the top, service courts in the middle, courts-martial at the base, present binding authority as binding and persuasive authority for its logic, and the argument carries exactly the weight the law gives it.
Frequently Asked Questions
What is the highest military appellate court?
The Court of Appeals for the Armed Forces (CAAF), a five-judge civilian court whose decisions guide the lower military courts across all service branches.
What is the difference between binding and persuasive precedent?
Binding precedent comes from a higher court in the chain and must be followed; persuasive precedent, such as another service court’s ruling, can only be offered for the strength of its reasoning.
Can the U.S. Supreme Court review military cases?
Yes. The Supreme Court can review certain military cases by writ of certiorari, sitting above CAAF in the order of authority.
This article is general information about precedent in military courts. It is not legal advice and does not create an attorney-client relationship. Application is fact-specific and the law can change. Specific questions should be directed to a qualified military attorney.
Sources
- Congress.gov, U.S. Court of Appeals for the Armed Forces: A Brief Introduction (CRS IF12296)
- United States Court of Appeals for the Armed Forces
- <a href="https://www.law.cornell.edu/wex/unitedstatescourtofappealsforthearmedforces_%28uscaaf%29″>Legal Information Institute, United States Court of Appeals for the Armed Forces (USCAAF)