Chapter VIII

CONVENING OF COURTS-MARTIAL

CONVENING ORDERS-CHANGES IN PERSONNEL-COMMAND RELATIONSHIP WITH COURT

36. CONVENING ORDERS. a. General. See 4 to 6, inclusive, for various matters relating to the convening of courts-martial including the detail of a law officer, and the detail of trial counsel, defense counsel, and their assistants. It may be inferred that personnel detailed to court-martial duty are on active duty with an armed force. See Article 25.

b. Form and content. A court-martial is created by a convening order issued by the convening authority. The convening order designates the kind of court, the place and time it is to meet, lists the members of the court, and, when appropriate, the law officer and the members of the prosecution and defense. It should designate no more members than those who are expected to be present for the trial of cases referred to the court which it convenes. The qualifications of the law officer under Article 26 and of the members of the prosecution and defense under Article 27 are shown in the convening order. If enlisted persons are detailed as members of the court, the unit-company, squadron, ship's crew, or corresponding body-of which each is a member is shown (4a; Art. 25 (c)). The convening order may contain a provision for the withdrawal of unarraigned cases from other courts-martial and referral of those cases to the new court; it should contain no reference as to whether a reporter or interpreter is authorized. See appendix 4 for forms of convening orders.

c. Selection of personnel. (1) General. Courts-martial are ordinarily composed of personnel of the convening authority's command. With respect to utilizing personnel of other commands or other armed forces, see 4f and g. If his subordinate commands are separated geographically, the convening authority may convene a court for each locality, using personnel from the area where the court is to sit. When a general court-martial is to be, or has been, convened to sit at a post, camp, station, or subordinate command located at a distance from the officer exercising general court-martial jurisdiction, and the personnel of the court are selected from that post, camp, station, or subordinate command, the commander of the installation or subordinate command should transmit timely recommendations to the convening authority as to the availability of members of his command, as affected by leave, reassignment, relief from active duty, or other matters, to act as personnel of any court to which they have been or may be detailed.

(2) Enlisted members. When charges against an enlisted person have been referred to a general or special court-martial to which enlisted members have not been detailed, and, before the convening of the court for trial, the

accused personally has requested in writing that enlisted persons serve on the court (61g, i; Art. 25 (c)), the convening authority shall:

(a) Detail a sufficient number of eligible enlisted persons to the court and, if appropriate, relieve a sufficient number of officers or warrant officers from the court to the end that at least one-third of the members who will actually participate in the trial of the case will be enlisted persons; or

(b) Withdraw the charges from the court to which they were originally referred and refer them to a court which is composed of the required percentage of eligible enlisted persons; or

(c) Advise the court before which the charges are pending to proceed with the trial in the absence of enlisted members if eligible enlisted persons cannot be obtained because of physical conditions or military exigencies. When this action is taken, the convening authority should transmit to the trial counsel, for inclusion in the record of trial, a detailed written statement of the reasons why enlisted persons could not be obtained for the trial of the case. This statement may be transmitted to the trial counsel when the charges are referred to trial if the facts are known at that time. 37. CHANGES IN PERSONNEL. a. General. Subject to the exceptions stated below (376), it is within the discretion of the convening authority to make changes in the composition of courts-martial convened by him. For instance, he may detail new members to a court in lieu of, or in addition to, the members of the original court; or he may detail a new law officer, trial counsel, or defense counsel in lieu of the personnel designated to perform those respective duties by the original convening order. When practicable, the convening authority should change the composition of courts-martial from time to time to provide the maximum opportunity for eligible personnel to gain experience in the administration of military justice.

b. Exceptions. No member of a general or special court-martial may be absent or excused after the accused has been arraigned except for physical disability or as a result of a challenge or by order of the convening authority for good cause (Art. 29(a)). Good cause contemplates a critical situation such as emergency leave or military exigencies, as distinguished from the normal conditions of military life. The determination of facts which constitute good cause for the excuse from attendance or the relief of a member after arraignment rests within the discretion of the convening authority. The record of trial should detail the basis for absence or relief of any member and affirmatively establish that the absence or relief falls within the provisions of Article 29 (a). The convening authority may not detail additional members to a general or special court-martial after the arraignment of an accused unless the court is reduced below a quorum or for other good cause. If practicable, he should excuse from future sessions of the court in a particular case any member who was absent when testimony on the merits was heard or other important proceedings were had.

See 41c for procedure when a member is absent because of physical disability.

c. Manner in which effected. (1) Changes in composition. Changes in the composition of a court-martial, such as changes which involve the detail of new personnel to a court or the relief of a member, are usually accomplished by the promulgation of formal written orders amending the original convening

order. If it is necessary to make a change by oral order, message, or signal, the oral order, message, or signal should be confirmed by written orders. For forms of amending orders, see appendix 4. Amendments of the original convening order should be kept to a minimum. To avoid making a number of separate changes by way of amendment, it is better practice to convene a new court. Any unarraigned case which is pending before the old court may be withdrawn from it and referred to the new court. In convening a new court, the old court should not be dissolved, nor the order convening the old court rescinded or revoked, as it may be necessary to reassemble the old court for revision. proceedings.

(2) Excusing personnel. If the convening authority excuses a member or counsel from attendance at future sessions of a general or special court-martial in a particular case or series of cases, but does not desire to relieve him permanently as a member or counsel, he may do this by oral order, message, or signal and need not confirm the action by a written order. See 41c, 44b and c, and 466 and c.

38. COMMAND RELATIONSHIP WITH COURT. Convening authorities are expressly forbidden to censure, reprimand, or admonish a court convened by them or any member, law officer, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceedings. No person subject to the code may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case (Art. 37). See also Article 98.

Chapter IX

PERSONNEL OF COURTS-MARTIAL

LAW OFFICER-PRESIDENT—MEMBERS—COUNSEL; GENERAL PROVISIONS— SUSPENSION OF COUNSEL TRIAL COUNSEL-ASSISTANT TRIAL COUNSEL DEFENSE COUNSEL-ASSISTANT DEFENSE COUNSEL COUNSEL FOR THE ACCUSED-REPORTER-INTERPRETER-GUARDS, CLERKS, AND ORDERLIES

39. LAW OFFICER. a. Selection. See 4e for qualifications of the law officer.

b. Duties. (1) General. The law officer is responsible for the fair and orderly conduct of the proceedings in accordance with law in all cases which are referred to the court to which he is detailed. He may, after conferring with counsel (39c), make recommendations to the senior member of the court as to the time of assembly of the court for the trial of a case. During the trial, he rules upon all interlocutory questions except challenges (57), recesses or adjourns the court as appropriate, and instructs the court on questions of law and procedure which may arise. His ruling upon any interlocutory question other than a motion for findings of not guilty or the question of the accused's sanity is final (57d). He is not a member of the court and does not vote with the members of the court upon a challenge or other interlocutory question properly referred to the court for decision, or upon the findings or sentence. Before the court closes to vote on the findings, he instructs it as provided in 73. After the court has finally voted on the findings, he may, at the request of the court, assist it in putting the findings in proper form (74ƒ; Art. 39). Before the court closes to vote upon a sentence, he must instruct it as to the maximum authorized sentence which it may impose.

(2) Interference in conduct of trial. The law officer may properly intervene in a trial of a case to prevent unnecessary waste of time or to clear up some obscurity. However, he should bear in mind that his undue interference or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, may tend to prevent the proper presentation of the case or hinder the ascertainment of the truth.

Consultation between the law officer and counsel in court is often necessary, but the law officer should avoid controversies which are apt to obscure the issues before the court. In addressing counsel, the accused, witnesses, or the court, he should avoid a controversial manner or tone. He should avoid interruptions of counsel in their arguments except to clarify his mind as to their positions, and he should not be tempted to the unnecessary display of learning or a premature judgment.

c. Record. All proceedings involving rulings or instructions made or given by the law officer during the course of a trial shall be made a part of the record. All instructions, except those given by the law officer to the court in closed ses