Chapter X

GENERAL PROCEDURAL RULES

REFERENCE TO CONVENING AUTHORITY-MISCELLANEOUS MATTERS INTRODUCTION OF EVIDENCE-ACTION WHEN EVIDENCE INDICATES AN OFFENSE NOT CHARGED WITHDRAWAL OF SPECIFICATIONS; MISTRIALS-INTERLOCUTORY QUESTIONS OTHER THAN CHALLENGES POSTPONEMENTS AND CONTINUANCES

52. REFERENCE TO CONVENING AUTHORITY. When a matter as to future proceedings in a trial by court-martial is referred to a convening authority exercising general court-martial jurisdiction, he will refer the matter to his staff judge advocate or legal officer for consideration and advice.

53. MISCELLANEOUS MATTERS. a. Order of proceedings. The chronological order of the usual proceedings in trials by general and special courts-martial is indicated in the guide to procedure in appendix 8 and in the forms of records in appendices 9 and 10.

b. Proceedings in each case to be complete. In each case, the proceedings and the record thereof must be completed without reference to any other case. For example, if several accused, who are to be tried at separate trials by the same court, are present while the personnel of the court, counsel, and the reporter are sworn (112c; app. 8; Art. 42), the fact that the required oaths were administered in the presence of an accused must be shown in his record of trial and not by reference to the record of trial of one of the other accused.

c. Joint and common trials. In joint trials (26d) and in common trials (337) each of the accused must in general be accorded every right and privilege which he would have if tried separately. For example, each accused may, if he desires, be defended by individual counsel, make individual challenges for cause (62h), make individual peremptory challenges (62e), cross-examine witnesses, testify in his own behalf, introduce evidence in his own behalf, and, if an enlisted person, make an individual request that the membership of the court include enlisted persons (4a, 61g). In a joint or common trial, evidence which is admissible against only one or some of the joint or several accused may be considered only against the accused concerned. For example, see 1406. When the evidence is equally applicable to several or all accused, however, needless repetition may be avoided by the use of appropriate language and consolidation of evidence pertinent to all accused.

d. Sessions. A general or special court-martial will sit in closed sessions during the deliberation and voting upon the findings and sentence, and upon interlocutory questions, including challenges. Only the members of the court who are to vote shall be present at these closed sessions. See 62h (3) with regard to voting on challenges. After a general court-martial has finally voted on the

findings, the court may request the law officer and the reporter to appear before the court in closed session to put the findings in proper form, and those proceedinge shall be on the record. See 74f1) for procedure. All other proceedings, including any other consultation of the court with counsel or the law officer, shall take place in open session, shall be made a part of the record, and shall be in the presence of the accused, the defense counsel, the trial counsel, and, in general court-martial cases, the law officer. See 76(4) and Article 39. See 57g(2) and 73d for rules governing certain proceedings had outside the presence of members of a general court-martial.

No member of a general or special court-martial shall have access to or use in any open or closed session the Manual for Courts-Martial, reports of decided cases, or any other legal reference material, except that the president of a special court-martial may 'use these publications or materials in open sessions only.

e. Spectators; publicity. As a general rule, the public shall be permitted to attend open sessions of courts-martial. Unless otherwise limited by directives of the Secretary of a Department, the convening authority, the law officer, or a special court-martial may, for security or other good reasons, direct that the public or certain portions thereof be excluded from a trial. However, all spectators may be excluded from an entire trial, over the accused's objection, only to prevent the disclosure of classified information. The authority to exclude should be cautiously exercised, and the right of the accused to a trial completely open to the public must be weighed against the public policy considerations justifying exclusion. In most instances, it is proper to exclude only those persons falling within a limited category for which good reasons exist for exclusion. For example, it would be proper to exclude minors when the evidence is likely to involve scandalous or indecent matter which would have an adverse effect on immature minds, to exclude those persons that would cause an overcrowded courtroom or displace those with a special concern in the trial, and to exclude any person who interferes with the administration of justice. Further, it would be proper to exclude all spectators temporarily when a child witness cannot coherently testify before an audience.

Persons other than the accused have no standing to object to the exclusion of spectators. When practicable, notices of the time and place of sessions of courts-martial will be published so that persons subject to the code may be afforded opportunity to attend as spectators provided attendance does not interfere with the performance of their duties. See also 118 (Contempts).

The taking of photographs in the courtroom during an open or closed session of the court, broadcasting of the proceedings from the courtroom by radio or television, or the recording of the proceedings by recording or similar devices for public release or broadcast will not be permitted.

The release of information with respect to suspected offenses and trials by courts-martial will be in accordance with regulations of the Secretary of a Department.

f. Witnesses. Ordinarily, witnesses other than the accused should be excluded from the courtroom except when they are testifying. To prevent the false shaping of testimony through collusion, coercion, or other means, the law officer, or the president of a special court-martial, upon his own motion or upon motion of counsel may instruct a witness to refrain from discussing his testi

mony or prospective testimony with anyone except counsel or the accused in the case. See appendix 8 for form of instruction.

g. Opportunity to present and support contentions. Both sides are entitled to an opportunity properly to present and support their respective contentions upon any question or matter presented to the court for decision. Restricting argument, particularly in long and complicated cases, or an arbitrary refusal to entertain argument on an interlocutory question, may constitute error; however, the right to present argument should not be abused, and the law officer or special court-martial may as a matter of discretion limit or refuse to hear argument when it is trivial, mere repetition, or made for the purpose of delay. Arguments throughout the trial may be oral, in writing, or both. See 826 (4) in this connection.

h. Explanation of rights of accused. Ordinarily, the law officer, or the president of a special court-martial, need not volunteer advice to the accused during the course of the trial as it may be assumed that his counsel has performed his duties properly, has advised the accused of his rights and the law affecting the case, and that, for reasons best known to them, they desire to pursue a certain course. When deemed necessary, the law officer, or the president of a special court-martial, will satisfy himself that the accused is aware of any right to which he is entitled by inquiry of counsel or by explaining that right. The rights of the accused with respect to the statute of limitations (68c; Art. 43) will, when applicable, be explained to the accused unless it otherwise affirmatively appears that the accused is aware of these rights. See 706 for the procedure to be followed as to guilty pleas. An accused who is not represented by legally qualified counsel should be advised of his rights to remain silent, testify as a witness, or make an unsworn statement as appropriate at the proper stages of a trial (75c (2), 140a, 148e, and 1496). When an accused is represented by legally qualified counsel, it may be assumed that he has been correctly advised. of these rights, and it is unnecessary to inquire if the accused has been so advised or to explain the right to the accused. Any inquiry or explanation as to the rights of the accused to testify in a general court-martial shall be made out of the hearing of the court members. See appendix 8 for forms of instructions.

i. Right of accused to interpreter. Upon a showing by the defense that the accused does not understand the English language and desires the services of an interpreter, the law officer, or the president of a special court-martial, will direct the trial counsel to take appropriate action to provide the accused with a competent interpreter. The latter will interpret for the accused all proceedings had in open session and all testimony given in any language other than that understood by the accused. The interpreter will be sworn before entering upon his duties. See 114e for form of oath.

54. INTRODUCTION OF EVIDENCE. a. Presentation of the case. Witnesses are usually examined in the following order: Witnesses for the prosecution, witnesses for the defense, witnesses for the prosecution in rebuttal, witnesses for the defense in rebuttal, witnesses for the court. The order of examining each witness is usually direct examination, cross-examination, redirect examination, recross-examination, and examination by the court. In a general court-martial, the examination by the court is ordinarily conducted by the law officer; thereafter, if necessary, members of the court may ask questions. of the witness. The court should protect every witness from improper questions,

insulting treatment, and unnecessary inquiry into his private affairs. See 1496 in this regard. Also see 150 and Article 31(a) and (c) for questions which a witness cannot be required to answer over his objection and 148, 149, 151, and 153 for other rules respecting the examination of witnesses.

b. Responsibility of the court. The court is not obliged to content itself with the evidence adduced by the parties. When that evidence appears to be insufficient for a proper determination of the matter before it or when not satisfied that it has received all available admissible evidence on an issue before it, the court may take appropriate action with a view to obtaining available additional evidence. The court may, for instance, require the trial counsel to recall a witness, to summon new witnesses, or to make an investigation or inquiry along certain lines with a view to discovering and producing additional evidence. In doing so, however, the court must be careful not to depart from an impartial role. The right of the members to cause the recall of a witness or to call for additional evidence is subject to an interlocutory ruling by the law officer or special court-martial as to the propriety therefor.

c. Exclusion of improper evidence. When offered evidence would be excluded on objection, the law officer, or the president of a special court-martial, may as a matter of discretion bring the matter to the attention of any party entitled, but failing, to object to its admission. This action is particularly important when improper testimony is elicited by questions asked by a member of the court--the reason for this being the natural hesitancy of the parties to object to a question asked by a member of the court and the weight likely to be given to testimony elicited through questions by the court. In the interest of justice, the law officer or special court-martial may on his or its own motion exclude inadmissible evidence.

Rules of evidence are stated in chapter XXVII and in various connections throughout this manual; for example, in 122c (Insanity), and 164 (Desertion).

d. Documentary evidence. If a document is marked for identification but not admitted in evidence, it should be appended to the record for the information of the convening authority and appellate agencies. See 154c (Offer of proof).

When a document, such as an original record, which must or should be returned to the source from which it was obtained, is received in evidence or marked for identification, a suitable copy or extract copy thereof will be substituted for the document and it will then be returned. Similar action may be taken to substitute an accurate description or photograph for an item of real evidence which must be returned to its source or is too bulky for inclusion in the record of trial. In this connection, see 138c (Real evidence).

e. Views and inspections. In exceptional circumstances, the law officer or special court-martial may as a matter of sound discretion authorize the court to view or inspect the premises or place or an article or object if the view or inspection is necessary to enable the members better to understand and apply the evidence in the case. The proceeding is authorized only if conducted in the presence of counsel, the accused, and, in general court-martial cases, the law officer. The view should not be undertaken if the members of the court are already familiar with the premises involved or if photographs, diagrams, or

maps adequately present the situation. The court may be escorted to the view by any person familiar with the premises and objects. The escort, without making any statement in the nature of evidence or argument, may point out particular features to be noted by the court. Before entering on his duties as escort, he will take the oath or affirmation prescribed in 114h.

The members may consider and apply the evidence in the light of the knowledge obtained by their inspection. The court should not hear witnesses or take evidence at the view, but anything said thereat by counsel, the authorized escort, members of the court, or the law officer will be recorded verbatim and constitute a part of the record of trial in any general court-martial case or in any special court-martial case in which a verbatim record is taken. Reenactments of the events involved or acts alleged to have been committed are not authorized upon a view.

The fact that a view or inspection has been made does not preclude the introduction in evidence of photographs or diagrams of articles or objects viewed, nor of maps or sketches of the premises or place viewed, if that evidence is otherwise admissible.

f. Inquiry into mental status. See 122 for action by the court when it appears that further inquiry into the mental responsibility of the accused is warranted in the interest of justice.

55. ACTION WHEN EVIDENCE INDICATES AN OFFENSE NOT CHARGED. a. General. If during the trial it becomes manifest to the court that there is substantial evidence, either before the court or offered, tending to prove that the accused is guilty of some other untried offense not alleged in any specification before the court, the court must proceed with the trial of the offenses charged. A report of the matter may properly be made to the convening authority after the conclusion of the trial.

b. Trial of new charges. When charges are preferred for an offense indicated by the evidence referred to in 55a, they may be referred to trial only to a court none of whose members participated in the previous trial.

56. WITHDRAWAL OF SPECIFICATIONS; MISTRIALS. a. General. Although the convening authority may withdraw, or cause to be withdrawn, any specification or an entire case from the consideration of any court for any reason, both the grounds upon which the specification or case is withdrawn and the time at which the withdrawal is directed will have an effect upon the action that may subsequently be taken. Withdrawal is accomplished by the convening authority directing the prosecution to take the necessary action to remove from the consideration of a particular court a specification and, when appropriate, the charge under which it is laid or the entire case. This action may be taken only when directed by the convening authority, who may give such a direction either on his own initiative or on application made to him. In the case of a joint or common trial, the withdrawal may be limited to one or more of the accused. In no event will a specification or case be withdrawn arbitrarily or unfairly to the accused.

b. Grounds for withdrawal. Normally, less than all of the specifications may not be withdrawn after the trial proceedings have begun except upon a determination of the convening authority that the specifications so withdrawn should be dismissed or for other good cause determined by the convening au