Adjournment

Advising offender

Opportunity to show cause

Preliminary ruling

Voting on preliminary ruling

Closed session

Holding of contempt and punishment

Proceedings in revision:

LO: Has the prosecution any other cases to try at this time?
TC: I have nothing further.

LO: The court will adjourn to meet on future call.

b. CONTEMPT PROCEDURE. See 118 and Article 48.

NOTE. The following is applicable to general and special courts-martial.
NOTE. When it becomes necessary for a court to take summary action on a
contempt (118a), an example of its proceedings would be:

LO (PRES): The proceedings in the case now before the court will be
suspended.
you (have used menacing words and gestures
in the presence of this court) (have disturbed the proceedings of this
court by (riotous and) disorderly conduct) (.
-). As the
record will show, you (have been warned repeatedly about your con-
duct) (have persisted in disturbing the proceedings of this court)
-). For example, you (have threatened the court with
action you will take against it because of its rulings;) (have been
contemptuous and insolent in your objections and arguments;)

You now have an opportunity to show cause why you should not be held in contempt.

NOTE. After hearing pertinent argument and evidence, if any, the following
ruling will be made :

LO (PRES): Subject to objection by any member of the court, it is my
ruling that you should (not) be held in contempt.

NOTE. If, as a result of a ruling of the LO, or the president of a special court-
martial, that is not objected to, there has been a preliminary determination that the
person involved not be held in contempt, the court will resume its regular
proceedings.

NOTE. If any member objects to a ruling of the LO, or the president of a special court-martial, the court will close and determine by majority vote whether the ruling shall be sustained. See 118b. A tie vote shall be a determination in favor of the person involved.

NOTE. If, as a result of the vote of the court, or a ruling of the LO, or the
president of a special court-martial, that is not objected to, there has been a pre-
liminary determination that the person involved be held in contempt, the LO, or
the president of a special court-martial, will give any instructions he considers
necessary, and the court will determine in closed session whether the person
involved should be held in contempt, and, in the event it so determines, will assess
a punishment. See 118a. Thereafter, the court opens and :

PRES: It is my duty as president of this court to inform you that the court,
in closed session and upon secret written ballot, [has held you not
guilty of contempt of this court] [two-thirds of the members present
at the time the vote was taken concurring, holds you guilty of con-
tempt of this court. And also in closed session and upon secret written
ballot, two-thirds of the members present at the time the vote was
taken concurring, adjudges the following punishment: (To pay to the
United States a fine of $50 and to be confined at hard labor for 10 days)
-) ].

LO (PRES): Proceed with the case.

c. REVISION PROCEDURE. See 80 and Article 62.

NOTE. The following is applicable to general and special courts-martial.
PRES: The court will come to order.

TC: All parties who were present when the court adjourned are now
present (except
-). (Additionally, the following are pres-
-).

ent in the capacity indicated:

NOTE. No mention need be made of those who were not present at the close of the previous session unless they are now present. No member will sit in revision proceedings who was not present at the close of the last session in the case, but all members who were present at the last session should be there. However, valid pro

ceedings may be conducted when a quorum is present, if any absent member or members have been properly excused. See 41d (4) and Article 29 (a). See 80b regarding the presence of other parties to the trial.

TC: These proceedings in revision have been (directed by the following directed by which will be inserted at this point in

communication:

the record) (undertaken by the court on its own motion in order to

-).

NOTE. The LO, or the president of a special court-martial, should give the court any instructions necessary for the proper accomplishment of the revision action. and he also may be requested by the court to give additional instructions concerning pertinent matter to which it is in doubt (80c). The case will not be reopened by calling witnesses or otherwise.

LO (PRES): The court will be closed.

NOTE. After deliberation, action, and voting as is appropriate, the proceedings Court votes continue.

PRES: The court will come to order.

TC: All parties who were present when the court closed are now present

PRES: The court in closed session and upon secret written ballot, (two- New findings thirds) (all) of the members present at the time the vote was taken concurring in each finding of guilty, revokes its former findings and substitutes therefor the following findings:

NOTE. The findings should then be announced in one of the forms prescribed in appendix Sa.

PRES: The court in closed session and upon secret written ballot, (two- New sentence thirds) (three-fourths) (all) of the members present at the time the

13.

vote was taken concurring, revokes its former sentence and substitutes the following therefor:

NOTE. The sentence should be stated in one of the forms prescribed in appendix

PRES: The court was closed and upon secret written ballot, (a majority) (two-thirds) (three-fourths) (all) of the members concurring, the

court adheres to its former

LO (PRES): The court will adjourn to meet on future call.

NOTE. The record is authenticated in the same manner as the record of trial. See appendix 9b.

Adherence to former action

Adjournment

Appendix 9

GUIDE FOR PREPARATION OF RECORD OF TRIAL BY GENERAL COURT-MARTIAL AND BY SPECIAL COURT-MARTIAL WHEN A VERBATIM RECORD IS PREPARED

a. RECORD OF TRIAL.

NOTE. Erasures or interlineations should be initialed by those who Erasures authenticate the record.

Pages will be numbered at the bottom; margins of 21⁄2 inches will be Margins left at the top to permit binding, and 1 inch at the bottom and left side of each page, using legal size paper.

Words on the left margin of this appendix are not part of the form of Marginal notes

record.

As a general rule, all proceedings in the case should be recorded verbatim, including oral arguments, subject to the instructional notes and examples shown in appendix 8 and herein. Also see 39c, 57g (2), and 73d in this connection.

This appendix is not a complete record of trial. It is to be used by the reporter and trial counsel as a guide in the preparation of the completed record of trial in all general court-martial cases, and in all special courtmartial cases in which a verbatim record is prepared. See 82 for instructions pertaining to the preparation of a record of trial by general courtmartial and 83 for instructions pertaining to the preparation of a record of trial by special court-martial. The reporter and trial counsel should also consult appendix 8, as it shows the manner in which many items of procedure should be recorded.

Record to be complete

Use of guide

NOTE. The title should be followed by an index. The form for this index will be as prescribed in publications of the Secretary of a Department. However, it should cover important phases of the trial, witnesses who testified, and exhibits that are appended to the record.

Title

Index

COPIES OF RECORD

copy of record furnished the accused as per attached cer

copy (ies) of record forwarded herewith.

Copies of record

tificate or receipt.

Receipt for record

Certificate in lieu of receipt

RECEIPT FOR COPY OF RECORD

I hereby acknowledge receipt of a copy of the above-described record of trial, delivered to me at

this

day of

I certify that on this date delivery of a copy of the above-described record of trial, including all exhibits admitted in evidence or descriptions thereof, was made to the accused, at

by

(Name of accused)

-9

(Place of delivery) and that the receipt of

(Means of effecting delivery, i.e., mail, messenger, etc.) the accused had not been received on the date this record was forwarded to the convening authority. The receipt of the accused will be forwarded as soon as it is received.

Convening orders

Accounting for personnel

Presence of accused

Swearing reporter

Time of session

NOTE. Here insert a copy of the orders convening the court and copies of any amending orders. Any request of an enlisted accused for enlisted court members will be inserted immediately following the convening orders, together with any declaration of the nonavailability of such enlisted persons.

PERSONS PRESENT

PERSONS ABSENT

NOTE. List LO, if any, and all members of the court, prosecution, and defense as present or absent, as announced by the trial counsel. Only rank or grade and name should be shown unless service number is necessary to distinguish between two persons.

The following named accused (was) (were) present:
The detailed reporter,.

was sworn.

NOTE. The remainder of the record of trial follows the actual proceedings in court. The reporter records all the proceedings verbatim, subject to the instructions set forth in appendix 8 and herein.

NOTE. The reporter should note and record the time and date of the beginning and ending of each session of the court, including the opening and closing of the court during trial. For example:

NOTE. It is not necessary to record verbatim the oath actually used, whether it be administered to a witness, a challenged member, the law officer, counsel, or the court. Regardless of the form of oath, affirmation, or ceremony by which the conscience of the witness is bound (112d; app. Sa), only the fact that a witness took an oath or affirmation is to be recorded. However, if preliminary qualifying questions are asked a witness prior to the administration of an oath (see, for example, 148b), the questions and answers should be recorded verbatim. These preliminary questions and answers do not eliminate the requirement that an oath be administered. The following are examples of the recording of the administration of various oaths: