A court of inquiry is one of the military’s more formal fact-finding tools, and it is frequently misunderstood as a kind of trial. It is not. A court of inquiry exists to find facts, not to convict, and a military attorney’s role is shaped by that purpose, whether serving the court itself or representing someone whose conduct is under examination.
What a court of inquiry is
Under Article 135 of the UCMJ, a court of inquiry may be convened to investigate any matter, by an authority who could convene a general court-martial or by a designee of the Secretary concerned. Its key features:
- It consists of three or more commissioned officers.
- The convening authority appoints counsel for the court.
- It makes findings of fact, but generally may not express opinions or make recommendations unless the convening authority requires it.
That last point is decisive: a court of inquiry is a fact-finding body, not a criminal tribunal. It establishes what happened; it does not adjudicate guilt or impose punishment.
The rights of a party
The role that most resembles a trial is that of a party. Any person subject to the UCMJ whose conduct is subject to the inquiry shall be designated as a party, and a party is given meaningful rights:
- Due notice of the inquiry.
- The right to be present and to be represented by counsel.
- The right to cross-examine witnesses and to introduce evidence.
These rights make representation of a party real and substantive, even though the proceeding is not a prosecution.
Where the attorney fits
A military attorney’s role takes two forms. One is serving as counsel for the court, helping the court conduct an orderly, thorough inquiry and develop the facts. The other is representing a designated party, exercising the party’s rights to protect their interests, cross-examining witnesses, introducing evidence, and shaping the factual record, knowing that the findings can carry consequences even though the court itself imposes none.
Say a serious mishap prompts a formal inquiry: the attorney may represent a designated party, exercising rights to notice, counsel, and cross-examination, even though the body finds facts rather than guilt.
What ties it together is that a court of inquiry is a fact-finding forum, and the attorney’s role follows from that. Under Article 135 it investigates matters and makes findings of fact rather than verdicts, a person whose conduct is examined becomes a party with notice, counsel, and cross-examination rights, and the lawyer either serves the court or advocates for that party.
Frequently Asked Questions
Is a court of inquiry a criminal trial?
No. Under Article 135 it is a fact-finding body that makes findings of fact and generally does not express opinions or recommendations unless required; it does not adjudicate guilt or impose punishment.
What rights does a party to a court of inquiry have?
A person whose conduct is subject to the inquiry is designated a party and has the right to due notice, to be present, to be represented by counsel, to cross-examine witnesses, and to introduce evidence.
Who serves as counsel in a court of inquiry?
The convening authority appoints counsel for the court, and a designated party may be represented by their own counsel, so an attorney may serve either the court or a party.
This article is general information about courts of inquiry. It is not legal advice and does not create an attorney-client relationship. Procedures can vary and change. Anyone involved in a court of inquiry should consult a qualified military attorney.
Sources
- Legal Information Institute, 10 U.S. Code § 935 (Art. 135, Courts of inquiry)
- <a href="https://www.dcms.uscg.mil/Portals/10/Administrative%20Investigations%20Manual%20CIM58301A.pdf”>U.S. Coast Guard, Administrative Investigations Manual
- Joint Service Committee on Military Justice, Manual for Courts-Martial (Rules for Courts-Martial)