 Two competing options:
 (1) Military tribunals / commissions
 Most recently, created by Executive Order in Nov 2001
 Secretary of Defense ordered to establish procedures for
the tribunals
 (2) Federal (civilian) criminal courts
 Already in existence
 Used to hold trials for violations Federal crimes
 Three to seven members on each tribunal
 All appointed by Secretary of Defense or his committee
 All commission members officers in the U.S. armed forces
 Presiding officer for each commission must be a military
lawyer
 Presiding officer has authority to admit / exclude evidence
 Trial may be conducted in closed session if necessary to
protect classified information or to assure the safety of
defendants, witnesses, or commission members.
 Defendant receives many, but not all, due process protections guaranteed to a
defendant in a Federal civilian criminal court.
 The tribunal procedures guarantee the following due process protections:
 Defense counsel of his or her own choosing, military or civilian attorney
 Presumed innocent until proven guilty
 Prosecution must prove its case beyond a reasonable doubt
 Accused may refuse to testify during trial
 The right to obtain witnesses and documents necessary for the defense
 No double jeopardy: A person accused may not be tried twice before a military
commission for the same offense
 An accused will be allowed to negotiate and enter into a plea agreement.
 Defendant convicted by a two-thirds majority -
Unanimous verdicts are not required
 Evidence will be admissible if it tends to prove or
disprove the case at hand
 The exclusionary rule, which keeps illegally seized
evidence out of a civilian criminal trial, does not apply
 No appeal from a guilty verdict to civilian judges
 However, there are "reviews" of a verdict by a three-
member panel selected by the Secretary of Defense. No
verdict will be final until approved by the President or
Secretary of Defense .
 All due process rights apply to defendants under 4th,
5th, 6th, and 8th Amendments
 Trial by jury
 Evidence admissible if relevant and credible
 Exclusionary rule applies and may result in illegally
obtained evidence being excluded from the trial
 A fair trial encompasses more than the trial itself
 Seizing evidence in violation of the 4th Amendment
and admitting that evidence in court are considered
parts of a single governmental action - illegality of first
part contaminates the second
 Weeks v. U. S. (1914): Exclusionary rule applied to
illegal searches by Federal officers
 Mapp v. Ohio (1961): Exclusionary rule applied to states
 Deters illegal searches and seizures
 Forces police to develop procedures and training that
prevent 4th and 5th Amendment violations
 No other alternative is available to the courts to
prevent illegal searches and or seizure of evidence
because they have no direct control over police
procedure or behavior
 Evidence that is otherwise credible and relevant may
be excluded from a trial
 There is little empirical evidence that the exclusionary
rule deters police illegality
 May causes considerable delay and waste of police and
judicial resources
 May encourage perjury on the part of police to cover up
technical violations