Similar to this post, why are the Marines found not guilty of murder at the end of A Few Good Men? With the precedent of the Nuremberg trials, the defense of "I was just following orders" doesn't seem legally valid.

To me, it seems that if the jury found them guilty of "Conduct Unbecoming", they acknowledge that the Marines should not have followed the Code Red order. By that line of thinking, they actively made the decision to follow the order, resulting in the death of Santiago. I'm having trouble separating the difference of being found guilty for "Conduct Unbecoming" but not-guilty for Murder.

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    Agree with the answers that point out that "following orders" is not an excuse for massive crimes against humanity, like attempted genocide, but that's a different standard than internal hazing as discipline (please do not interpret that to say I condone hazing), which was the original intent of the "Code Red." Commented Jun 13, 2017 at 17:08

6 Answers 6


So one could argue that it was a plot device or that the jury simply found that there was insufficient evidence to convict. Let's look at what UCMJ Article 118: Murder says:

Any person subject to this chapter whom without justification or excuse, unlawfully kills a human being, when he- –

(1) has a premeditated design to kill;

(2) intends to kill or inflict great bodily harm;

(3) is engaged in an act which is inherently dangerous to others and evinces a wanton disregard of human life; or

(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson;

is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct.

There is no actual "Murder in the First Degree" charge in UCMJ that I am aware of (or could find), instead murder is murder, whether it was premeditated or caused by other unlawful acts. Note that causing a real accidental death (e.g. if you lose control of your vehicle and hit someone) is still Manslaughter rather than Murder.

So my first point is that it's a Hollywoodism to begin with, since they charge them with a crime that doesn't exist in UCMJ.

If they were actually charged with Article 118, would it have stuck? Well, that's more challenging to say as viewers of the trial. Let's try the various tenets of the Article:

Any person subject to this chapter whom without justification or excuse, unlawfully kills a human being, when he- –

OK, so they are active duty Marines (therefore subject to this chapter), the jury ruled the "we were following orders" didn't give them justification or excuse, and it's established that they killed a human being unlawfully.

The 4 points are all "or" statements:

(1) has premeditated design to kill;

Ok, no, it's established they didn't plan on killing Santiago just roughing him up

(2) intends to kill or inflict great bodily harm;

This one is more debatable, but I think we can again assert that they definitely didn't intend to kill, and probably didn't consider what they were inflicting to be 'great' bodily harm. Certainly, there was nothing in what we saw of the trial (recall that we don't get to see every second of it) that establishes beyond a reasonable doubt that they intended to do more than scare the kid.

(3) is engaged in an act which is inherently dangerous to others and evinces a wanton disregard of human life; or

So this one I could actually see sticking, depending on how the lawyers argued it and what kind of off-camera evidence was presented. That said, it could have been established that based on other cases of Code Reds that hadn't caused more than bruising, the defendants were not wantonly disregarding human life and could not have expected it to be inherently dangerous. People get bruises in training all the time.

(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson;

Unless there were cut scenes that took a darker turn, these are all "no" as well.

Agree with the other answer that there is no "Conduct Unbecoming a US Marine", but I would say that Article 134: General Article would apply instead:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

So again, the change in the name of the charge is something of a Hollywoodism, but if correctly named it definitely could have resulted in the dishonorable discharge that they got.

I should note that I'm not a lawyer, but I've been both a Company and Battalion Commander in the US Army, and so have had to be fairly familiar with UCMJ.

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    Good answer. As noted they weren't actually guilty (by a reasonable, perhaps lenient, interpretation) of murder regardless of whether they were ordered to rough up Santiago or not.
    – Paulie_D
    Commented Jun 13, 2017 at 14:35
  • Like the real-life context this answer adds. Commented Jun 13, 2017 at 17:06
  • I appreciate the context provided around the UCMJ. The movie didn't go out of its way to make the UCMJ definitions of the charges clear - probably because some of the charges don't even exist!
    – stugotz
    Commented Jun 15, 2017 at 13:57

Let's look at what they were charged with

Docket number 411275. VR-5. United States versus Lance Corporal Harold W. Dawson and Private First Class Loudon Downey.

Defendants are charged with Conspiracy to Commit Murder, Murder in the First Degree, and Conduct Unbecoming a United States Marine.


So...now let's look at what Murder in the First Degree means (allowing for minor differences in the UCMJ*).

*For which see this excellent answer

First-degree murder: any intentional murder that is willful and premeditated with malice aforethought.


So, since it is established that they did not intend for Santiago to die, and his death was an unforeseen accident, they aren't actually guilty of the crime for which they are being charged.

Equally, since they didn't murder anyone (technically), or plan to kill, they weren't guilty of Conspiracy.

The final charge, "Conduct Unbecoming" is one they are guilty (insofar as they obeyed an illegal and immoral order) and assaulted Santiago... and they are found guilty of that.

The defendants continually decline (over the course of the film) to take a lesser charge of Manslaughter (of which they were, in fact, guilty) and you can't be convicted of a crime for which you are not charged.

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    Isn’t there some alternative version of murder in the first degree, like “if you get someone killed while committing a crime, that’s murder not manslaughter” or something like that? Otherwise it seems like it would have been really hard for the prosecutor to have ever gotten murder 1 on this.
    – KRyan
    Commented Jun 12, 2017 at 16:58
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    @KRyan - That's for trials that fall within the Judicial system, but Court Martials are carried out according to military regulations (The UCMJ) which falls under the Executive Branch. It's similar, but slightly different. I'm not familiar enough with it to know if there's a similar clause within the UCMJ or not, it's been a while since I had to worry about it :) Plus, I think that only counts if they were committing a felony.
    – Taegost
    Commented Jun 12, 2017 at 17:11
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    @KRyan, that's known as the felony murder rule. It's common but not universal in common-law countries; I don't know if the UCMJ has adopted such a rule.
    – Mark
    Commented Jun 12, 2017 at 18:26
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    @DRF But but, that contradicts all the hours of Law & Order that I’ve watched! :P
    – KRyan
    Commented Jun 12, 2017 at 19:40
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    This is actually incorrect the UCMJ article for Murder (Article 118) is significantly different from civilian "Murder in the First Degree". I'll post an answer explaining.
    – Paul
    Commented Jun 13, 2017 at 12:26

At Nuremberg, two distinctions made by the prosecution to combat the "Superior Orders" defense were that 1) because of the nature of the trial, the defendants had responsibility under international law, not just the law of their own nation. It was found that they were not exempt from their moral responsibilities in this dimension; and 2) the egregiousness of the crimes meant that there was no shadow of a doubt that the defendants were aware of their actions and the reprehensibility of them.

A Few Good Men is an illustration of our own institutions' ability to judge their own actions. While a moral judgment is part of this, as a film it is also in large an exploration of the power structure that allowed the crime to take place. Someone with more knowledge of military law could step in now, but I think I am making a fair comparison in saying that, because of the muddy nature of the case, and how the Colonel wielded his power in an underhanded way, there was more interest in establishing a guilty party in terms of the cause of the crime, and not the nature of the crime.

Another thought: the military probably has a vested interest in defending the chain of command, because in many ways that is what allows it to be effective. I think the safe assumption is that, in judging itself, the military would find actions under orders "conduct unbecoming" but be sympathetic to the chain of command, and try to preserve its image.

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    Protecting the 'chain of command' is essential but when you have committed a crime either by direct action or cover-up, you become guilty of the conspiracy and cya.
    – M.Mat
    Commented Jun 13, 2017 at 1:53

With the precedent of the Nuremberg trials, the defense of "I was just following orders" doesn't seem legally valid.

While you bring up a valid counterargument, you also need to concede that there is a grey area here.

The Nuremberg trials refused to accept "following orders" as an excuse, because the soldiers engaged in what was clearly a human rights violation.
Following that same logic, "I was following orders" does not fly if your commanding officer tells you to rape a woman or kill a child; but it would fly if you shoot someone who is armed and running away from your miltary base (and later turns out to be innocent and did not commit any crime).

If the circumstances clearly prove that the Marines were not capable of assessing the morality of their actions because they did not have a complete understanding of what was going on (and it is not a case of willful ignorance), then they cannot be blamed for acting on lawful orders that did not directly and clearly contradicted any law.

Even when you ignore the military aspect of your question; no person should ever be convicted of a law that they did not knowingly break. Again, I am excluding willful ignorance because that can be considered knowingly taking action so you can break a law.

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    "no person should ever be convicted of a law that they did not knowingly break."...Nope. Just because they didn't know it was illegal doesn't mean you can't be convicted for the crime.
    – Paulie_D
    Commented Jun 12, 2017 at 15:01
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    It's nothing to do with morally acceptable it's about the law. If you commit a crime you can be convicted of it even if you were ignorant of the law. The punishment/sentence is where ignorance and mitigation can come into play. Anyway that's nothing to do with the question the OP asked and a much wider discussion.
    – Paulie_D
    Commented Jun 12, 2017 at 15:07
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    @Flater On the other hand, you might be if you knew the gun was there. Regardless, Paulie_D is right. en.wikipedia.org/wiki/Ignorantia_juris_non_excusat Your specific case is not about ignorance of the law but ignorance of the situation.
    – JAB
    Commented Jun 12, 2017 at 15:42
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    People are convicted of crimes they didn't knowingly commit all the time. For a simple example, "I'm sorry officer, I didn't see the sign and I thought it was 50 down here" will not get you out of a speeding ticket. Commented Jun 12, 2017 at 15:45
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    @Paulie_D is right. What you're missing, Flater, is that some crimes include intent in their definition. By definition it is impossible to "accidentally" murder someone, because the crime "murder" includes intent. "Accidental murder" is still illegal, however; it's a different crime called "manslaughter." As another example, "criminal negligence" does not require intent to be proven for a conviction, as that would be a contradiction in terms.
    – Wildcard
    Commented Jun 12, 2017 at 17:00

When the defense does it, it's called "copping a plea." But this option is also available to the jury, acting on behalf of either the defense, or the prosecution.

First, let's look at the charges, both actual and potential. Murder, first degree,(or just plain murder 1) is a situation where someone is intentionally killed, and the killing was premeditated or planned beforehand. Murder second degree, is a situation where someone is intentionally killed, but the "decision" was made on the spur of the moment. Manslaughter refers to a killing that was not intentional, but due to recklessness, and was therefore avoidable (was not accidental).

The defendants were clearly not guilty of murder 1 (which they were charged with), or even murder 2, because they didn't want Santiago to die, there was no requisite intent. Yet the fact remains that Santiago is dead at their hands. That suggests a charge of manslaughter. And often, someone accused of murder will plead guilty to manslaughter and "split the difference" (that is, get a lighter sentence than for murder, while the prosecution "locks in" some jail time).

The jury went further reduced the charge even more; to "conduct unbecoming a Marine," which in this case, meant obeying an unlawful order. In this sense, they acknowledged that the guilty parties did not act on their own volition, but were rather "put up" to killing Santiago. So it cleared the Marines of killing him per se, and convicted them with following an order that led to his death.


At the end of the day, the marines are being convicted by a small jury of specific individual military officers, who are making decisions based on what they see as right and wrong, and who are at least somewhat accustomed to handling matters like this as judgement calls. Obviously, the law is part of this, but the law gives them a fair bit of leeway, and the only way that leeway gets challenged is if it gets taken to appeals court. My read is that the officers of the jury judged that the marines did act in an inappropriate manner, but that morally, they were not culpable for the murder of a fellow Marine. That "morally" portion doesn't show up in the law itself (it's entirely too fuzzy) but the jury is more than capable of applying it themselves, and if no one appeals, that's the answer that stands.

After all, the entire case here is based on one officer, and the liberties he took with deciding appropriate discipline for the soldiers under his purview. Obviously, he took it entirely too far - something that happens sometimes - but the behavior overall is an intended and integral part of the system.

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