trial counsel has good reason to anticipate such a reduction, he will report the facts through appropriate channels to the convening authority. See 36c (1). Ordinarily, he will correct and initial slight errors or obvious mistakes in the charges, but will not without authority make any substantial change therein. See 33d and e(2). He will take proper action to assure that the data on the charge sheet and any evidence of previous convictions are complete and free from errors of substance or form.

(2) Notification of personnel; witnesses. He will give timely oral or written notice to the members of the court and to all others concerned, including any officer whose duty it is to see that the accused attends the court, of the date, hour, and exact place of any meeting of the court. He may include in this notice such other matter as the president may direct, such as a statement of the uniform to be worn. Before trial, he will notify and arrange to have present at the trial witnesses who are to testify in person, including witnesses desired by the defense, and the reporter and interpreter if required. Before deciding that the presence of any particular witness is necessary, he should first consider whether the evidence which the witness is expected to give is material and necessary and whether a deposition will properly answer the purpose and is practicable. See 117 and Article 49. The trial counsel does not, however, have authority to determine whether witnesses requested by the defense will be required to attend. If he disagrees with the defense counsel as to whether the attendance of a witness is necessary, he will report the matter to the convening authority in the manner prescribed in 115a.

(3) Preparing for trial. Before the court assembles, he will obtain a suitable room for the court, see that it is in order, procure requisite stationery, prepare a copy of the charges and specifications for each member of the court and the law officer, and take such other action as will enable him to make a prompt, full, and systematic presentation of the case at the trial. As to each offense charged, the burden is on the prosecution to prove beyond a reasonable doubt by competent evidence that the offense was committed, that the accused committed it, and that he had the requisite criminal intent at the time, except to the extent that such a burden is relieved by a plea of guilty. When the question of jurisdiction of the court over the accused is placed in issue, the prosecution also has the burden of proving that jurisdiction exists, without regard to the accused's pleas. Whatever the defense may be, the burden of proof in each of these instances never changes. Proper preparation to meet this burden includes a consideration of the essential elements of the offense and of the pertinent rules of evidence, to the end that only competent evidence will be introduced at the trial, and requires a determination of the order in which the evidence will be introduced. In general, evidence should be presented in the sequence of events as nearly as practicable, and when several offenses are charged, especially if unrelated, the evidence should be directed to the development of their proof in the order charged. If evidence is to be presented out of proper sequence to suit the convenience of witnesses or for other reasons, the trial counsel may invite the attention of the court to the anticipated deviation.

(4) Legal research. If he finds that the provisions of this manual do not clearly settle a question likely to arise at the trial, he should endeavor to secure for use at the trial authorities to sustain his contentions, such as pertinent de

cisions of the courts or authoritative military precedents. To secure these authorities, he may communicate with the convening authority.

(5) Reporting inadvisability of trial. If, while preparing a case, he discovers a matter which in his opinion makes it inadvisable to bring the case to trial, he will inform the convening authority at once, provided it is reasonably apparent that the matter was not known to the convening authority when the charges were referred for trial. For example, this action would be appropriate when the trial counsel discovers that there has not been a substantial compliance with Article 32, and it appears that the accused may be prejudiced thereby, or that the accused was or is insane, or that the only witness to an essential fact has disappeared or repudiates the substance of the testimony expected from him. g. Duties during trial. (1) General. He executes all orders of the court. Under the direction of the court, he keeps or superintends the keeping of the required record of proceedings.

Although his primary duty is to prosecute, any act, such as the conscious. suppression of evidence favorable to the defense, inconsistent with a genuine desire to have the whole truth revealed is prohibited. With a view to saving time and expense, he should join in appropriate stipulations as to unimportant or uncontested matters. See 1546 (Stipulations).

He should respectfully call the attention of the court to any apparent illegalities or irregularities in its action or in the proceedings.

He will take care that any papers in his possession which relate to a case referred to him for trial and which are not in evidence are not exposed to any risk of inadvertent examination by members of the court. He will not bring to the attention of the court any intimation of the views of the convening authority, or those of the staff judge advocate or legal officer, with respect to the guilt or innocence of the accused, an appropriate sentence, or concerning any other matter exclusively within the discretion of the court. See Article 37.

Aside from opinions expressed in the proper discharge of his duty to prosecute, for example, in his closing argument or in an argument on a motion or on the admissibility of evidence, he should not give the court his opinion upon any point of law arising during the trial except in court when it is requested by the law officer or the president of a special court-martial. It is improper for him to assert before the court his personal belief as to the guilt or innocence of the accused. When he addresses the court, he will rise.

(2) Presentation of the case. The trial counsel may make an opening statement-that is, a brief statement of the issues to be tried and what he expects to prove but he will avoid including or suggesting matters as to which no admissible evidence is available or intended to be offered. Ordinarily, such a statement is made immediately before the introduction of evidence for the prosecution, but in exceptional cases the law officer, or the president of a special courtmartial, in his discretion may permit like statements to be made at later stages of the proceedings.

On behalf of the prosecution, he conducts the direct and redirect examination of the witnesses for the prosecution and the cross and recross-examination of the witnesses for the defense. He will, unless the law officer, or the president of a special court-martial, otherwise directs, conduct the examination. for the court of any witnesses called by the court. On behalf of the prosecution, he may cross-examine a witness called by the court if the witness has not pre

viously testified for the prosecution or defense (see 1536 (1)), or if the witness has so testified, as to any new matter elicited upon recall by the court (see 1496 (3)).

See 72 as to closing arguments.

h. Relations with the accused and his counsel. Except to the extent that this manual may otherwise require, it is not his duty to assist or advise the defense.

Immediately upon receipt of charges referred to him for trial, he will serve a copy of the charge sheet, as received and corrected by him, on the accused and will inform the defense counsel that the copy has been so served. Except as otherwise directed by the convening authority (see, for example, 1516 (1) and (3)), he will permit the defense to examine from time to time any paper accompanying the charges, including the report of investigation and papers sent with the charges on a rehearing. He will also permit the defense to examine from time to time the order convening the court and all amending orders. Before trial, he should advise the defense of the probable witnesses to be called by the prosecution, and the fact that the defense has not been so advised with respect to a witness who appears at the trial may be a ground for a continuance.

His dealings with the defense should be through any counsel the accused may have. Thus, if he desires to know how the accused intends to plead or whether an enlisted accused desires enlisted members on the court, he will ask the regularly detailed defense counsel or other counsel, if any, of the accused. He will not attempt to induce a plea of guilty.

The trial counsel will furnish every person tried by the court a copy of the record of the proceedings as soon as it is authenticated. In this connection, see 82g (1) (Disposition-Delivery to accused).

i. Duties after trial. See 82 and 83 for rules governing the preparation, authentication, and disposition of the record of trial.

45. ASSISTANT TRIAL COUNSEL. a. General court-martial. Unless he is disqualified by reason of prior participation in the case (6a), any person named in the convening order as an assistant trial counsel of a general courtmartial may, under the direction of the trial counsel or when he is qualified to be a trial counsel as required by Article 27 (b), perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel of the court. See Article 38 (d). He will perform those duties in connection with trials which the trial counsel may designate. However, an assistant trial counsel who is not qualified to be a trial counsel as required by Article 27(b) may not perform any of the duties of the trial counsel before the court in a general courtmartial case. Except when the contrary affirmatively appears, all duties performed outside of court by the assistant trial counsel of a general court-martial shall be deemed to have been performed under the direction of the trial counsel. b. Special court-martial. Unless he is disqualified by reason of prior participation in the case, any person named in the order as an assistant trial counsel of a special court-martial may perform any duty of the trial counsel. See Article 38(d). He will perform those duties in connection with trials which the trial counsel may designate.

46. DEFENSE COUNSEL. a. Selection. See 6 for qualifications of defense counsel.

b. Disqualification. A report of facts will be made at once to the convening authority for his appropriate action when it appears to the court or to the defense counsel that any member of the defense named in the convening order is for any reason, including unfitness, bias, prejudice, hostility toward the accused, lack of legal qualifications if required, or previous connection with the same case, unable properly and promptly to perform his duties in any

case.

c. Absence. For a proper reason, for example, preparation of another case, the law officer, or the president of a special court-martial, shall, with the express consent of the accused, excuse from attendance during a trial those personnel of the defense whose attendance will not be required. See Article 38(b).

d. General duties. When the defense is not in charge of individual counsel (42a), the duties of defense counsel are those outlined in 48. When the defense is in charge of individual counsel, civilian or military, the duties of defense counsel as associate counsel are those which the individual counsel may desig

nate.

When charges are referred to a court for trial, the defense counsel will inform the accused immediately that he has been detailed to defend him at the trial, explain his general duties, and advise him of his right to select individual counsel, civilian or military, of his own choice pursuant to Article 38(b). If the accused expresses a desire to be represented by individual counsel, the defense counsel will immediately report the fact to the convening authority, through the trial counsel, and take appropriate steps to secure and consult the requested counsel and, if the accused desires, act as associate counsel. Unless the accused otherwise desires, the defense counsel will undertake the immediate preparation of the defense without waiting for the detail or retention of any individual counsel.

47. ASSISTANT DEFENSE COUNSEL. Unless he is disqualified by reason of prior participation in the case (6a; Art. 27(a)), any person named in the order as an assistant defense counsel of a general or special court-martial may, when he is qualified to be the defense counsel as required by Article 27, perform any duty imposed by law, regulations, or custom of the service upon counsel for the accused. See Article 38 (e). Unless in charge of the defense, he will perform those duties in connection with the trial that the counsel in charge of the defense may designate. However, an assistant defense counsel who is not qualified to be defense counsel as required by Article 27 may not perform any of the duties of the defense counsel before the court in a general or special court-martial case. Except when the contrary affirmatively appears, all duties performed outside of court by the assistant defense counsel shall be deemed to have been performed under the direction of the counsel in charge of the defense.

48. COUNSEL FOR THE ACCUSED. a. Statutory right to counsel of his own choice. The accused has the right to be represented in his defense before a general or special court-martial by civilian counsel if provided by him, or by military counsel of his own selection if reasonably available, or by the defense counsel detailed under Article 27. Should the accused have counsel of

his own selection, the defense counsel and any assistant defense counsel who were detailed, shall, if the accused so desires, act as his associate counsel; otherwise they shall be excused by the president of the court (Art. 38(b)). Civilian counsel will not be provided at the expense of the United States.

Only a person qualified under Article 27 (b) or otherwise qualified as a lawyer may act as individual counsel or represent an accused before a general court-martial. Even at his own insistence after full advice an accused may not be represented by a person who does not fall within one of these categories. An accused may, if he desires, conduct his own defense without assistance of counsel. In such a case, the law officer shall advise him of his right to be represented by qualified counsel. In any case, whether represented by qualified counsel or by himself, an accused may have a nonlawyer present and seated at the counsel table and may consult with him, subject to the discretion of the law officer or the special court-martial.

Military personnel on active duty or persons employed by the armed forces shall not solicit or accept fees of any kind from an accused as reimbursement for acting as his counsel before a court-martial or before any of the appellate agencies concerned with the administration of justice under the code.

b. Detail of individual military counsel. The application for the detail of a person requested by the accused as military counsel may be made by the accused or by anyone on his behalf, but it is usually forwarded by the defense counsel to the convening authority. The convening authority will take the following action:

(1) If the requested counsel is within his immediate command and is reasonably available, he will make the detail and order any necessary travel. If he determines that the requested counsel is not reasonably available, he will so advise the accused.

(2) If the requested counsel is not a member of the command of the convening authority, the convening authority will forward the request for a determination of availability to the commanding officer or head of the organization, activity, or agency with which the requested counsel is on duty.

When a determination is made within a military department that requested counsel is not available, unless made at departmental level or by a commanding officer or supervisor immediately subordinate to the departmental level, that determination is subject to appeal to the requested counsel's next higher commanding officer or level of supervision. Appeals may not be made which require action at departmental or higher level. The accused will be promptly notified of any decision on a request or an appeal. A pending appeal is ordinarily a proper ground for postponement or continuance of the trial. When a determination has been made that requested military counsel is not reasonably available and the case is subsequently tried by a special or general court-martial, the application of the accused for that counsel and the actions of the convening authority and, if applicable, of other authorities, together with the reasons for the determination, shall be made a matter of record and be included with the record of trial.

A person who has acted as a member of the prosecution in the same case is not available for detail as individual counsel. See 6a and Article 27. A military person who has been made available to act as individual counsel will, so far