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Members will be dignified and attentive. Although a court has no power to punish its members, improper conduct by a member, such as a refusal or failure to vote or properly to discharge any other duty under his oath or otherwise, is a military offense.

b. New member. If, in the course of a trial, a new member is detailed to the court pursuant to 37 and is sworn (opportunity to challenge him having been given), the substance of all proceedings had and evidence taken in the case prior to his introduction will be made known to him in open court before the trial proceeds.

c. Absence of members-In general. A member of a general or special courtmartial who has reason to believe that he will be absent from a session of the court will so inform the trial judge advocate, stating the reason.

When less than a quorum is present the court can not be organized as such or proceed with a trial. Less than five members (three in a special court-martial) may adjourn from day to day, and when five (three) are present and one is challenged, the remaining four (two) may pass on the challenge.

When, pursuant to Article 4, an enlisted person requests participation of enlisted members in his trial by general or special court-martial the court shall not, without his consent, proceed with his trial unless one-third of the members actually sitting on the court throughout his trial are enlisted persons.

If the membership of a court-martial is reduced below the minimum required by law or if the trial judge advocate has good reason to anticipate a reduction he will report the facts to the appointing authority. A report relating to personnel requirements will usually be made by the trial judge advocate through the commanding officer of the post, command or station where the court is sitting, who will promptly forward it or the substance thereof to the appointing authority, together with the names of an appropriate number of officers or enlisted persons available and suitable for detail as members of the court-martial.

The principles of 38b apply when a member misses part of the proceedings because of absence during a trial.

Absence of law member. A general court-martial shall not receive evidence upon any matter nor shall it vote upon its findings or sentence in the absence of

the law member (A. W. 8). When the law member is absent at any time during the trial of a case by general court-martial the court will adjourn until either the law member is present or a new law member is regularly detailed and is present, and will, if the circumstances so require, cause a report of the facts to be made to the appointing authority.

39. PRESIDENT-Duties. The senior in rank among the members present is the president and presiding officer of the court. If the law member of a general court-martial is or becomes the senior member present, he exercises the functions of both president and law member.

As president he maintains order and, subject to the direction of the court, gives the directions necessary for the regular and proper conduct of the proceedings, and takes proper steps to expedite the trial of all charges referred to the court. Unless otherwise provided, he speaks and acts for the court in every instance for which a rule of procedure has been prescribed by law, regulation, or its own resolution, and authenticates by his signature all acts, orders, and proceedings of the court. With reference to the duty of the president of a special court-martial to rule on interlocutory questions, see 51c.

As a member he has the duties, powers, and privileges of members in general.

In special court-martial cases the president will instruct the court in accordance with Article 31. See in this connection 78a, 78d, and 125a.

40. LAW MEMBER. As a law member, his principal duty is to rule upon interlocutory questions (51d) and to advise the court on questions of law and procedure which may arise in discussions in closed session. Such advice may include an explanation as to the elements necessary to establish the offense charged, what lesser offenses, if any, are included in the offense charged, the possible findings the court may make by way of exceptions and substitutions, the maximum punishment for each offense with which accused is charged, and if requested, the proper form in which to state the findings and sentence reached by the court. As a member he has the duties, powers, and privileges of members in general. In accordance with Article 31, it is the duty of the law member before a vote is taken to advise the members in open court concerning the presumption of innocence and the nature and quantum of evidence

required to sustain findings of guilty. See 78a, 78d, and 125a.

Chapter IX-Counsel and Other
Personnel

TRIAL JUDGE ADVOCATE—ASSISTANT TRIAL
JUDGE ADVOCATE-DEFENSE COUnsel-
ASSISTANT DEFENSE COUNSEL-INDIVIDU-

AL COUNSEL-REPORTER-INTERPRETERCLERKS AND ORDERLIES

41. TRIAL JUDGE ADVOCATE—a. Selection; relief; absence. He will be carefully selected.

The trial judge advocate of a general court-martial shall, if available, be a member of the Judge Advocate General's Corps or an officer who is a member of the bar of a Federal court or of the highest court of a State of the United States (6; A. W. 11). Within the meaning of Article 11, determination of the availability of members of the Judge Advocate General's Corps or of members of Federal or State bars rests exclusively within the discretion of the appointing authority and his determination shall be final.

The trial judge advocate must be fair and free from bias, prejudice or hostility. If he has acted as a member of the court, defense counsel, assistant defense counsel, or investigating officer in any case he shall not subsequently act in the same case as trial judge advocate or assistant trial judge advocate (A. W. 11). A report of facts will be made at once to the appointing authority through appropriate channels whenever it appears to the president of the court, or to the trial judge advocate himself, that the latter is for any reason, including bias, prejudice, hostility, or previous connection with a particular case, disqualified or unable properly and promptly to perform his duties. See 58b.

For a proper reason (e. g., preparation of another case) the president may excuse from attendance during a trial or trials such of the personnel of the prosecution as will not be required.

b. Duties in general; weekly report; report to commanding officer of result of trial; freedom in conducting cases. The trial judge advocate of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of its proceedings (A. W. 17). When charges are referred to him for trial, it is his duty promptly to bring

them to trial before the court indicated in the reference for trial. See 103 and Article 19 as to oath.

Unless otherwise directed by the appointing authority, he will submit a weekly report to the latter through the president of the court, in which, in addition to such matter as may be required by the appointing authority, will be included a statement of the reasons for delay in disposing finally of cases that have been on hand for over two weeks.

Immediately upon final adjournment of the court in a case, and irrespective of whether any announcement in open court was made concerning the result, the trial judge advocate will notify the commanding officer of the accused in writing of the result, including any findings reached and any sentence imposed by the court.

Subject to the provisions of the manual, he should be left free by the court to introduce his evidence in such order as he sees fit. In general, he may bring cases to trial in such order as he deems expedient. He will be given ample opportunity to prepare properly the prosecution of each case. With a view to saving time, labor, and expense, he should join in appropriate stipulations as to unimportant or uncontested matters. See 140b (Stipulations).

c. Duties prior to trial. He will report to the appointing authority any substantial irregularity in the order appointing the court or in the charges or accompanying papers. 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 34. 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.

Unless otherwise directed by the president or unless obviously unnecessary, he will send a timely notice to the members of the court and to all others concerned, including the officer, if any, whose duty it is to see that the accused attends, 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. Prior to 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 in

terpreter if required. See 105. 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 can as well be covered by a stipulation or deposition. See 105a and Article 25. If in disagreement with the defense counsel as to whether the attendance of a witness required by the defense is necessary, he will report the matter to the appointing authority.

Before the court assembles he will obtain a suitable room for the court, see that it is in order, procure the requisite stationery, and take such 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 relevant evidence that the offense was committed, that the accused committed it, that he had the requisite criminal intent at the time, and that the accused is within the jurisdiction of the court, except to the extent that such burden is relieved by a plea of guilty. Whatever the defense may be, this burden 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 relevant 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 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 so that neither the court nor the accused may be in doubt at any time as to the offense to which the evidence being introduced refers.

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 decisions of the courts or authoritative military precedents. To secure these authorities he may communicate with the appointing authority.

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 appointing authority at once, provided it is reasonably apparent

that the matter was not known to the appointing authority when the charges were referred for trial. For example, such action would be appropriate when the trial judge advocate discovers that there has not been a substantial compliance with Article 46b (35a), and it ap pears 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.

d. Duties during trial. 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. He signs the record of each day's 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.

While the court is in open session, he should respectfully call its attention 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; nor will he bring to the attention of the court any intimation of the views of the appointing authority, or those of the staff judge advocate, with respect to the guilt or innocence of the accused, appropriate sentence, or concerning any other matter exclusively within the discretion of the court. See Article 88.

Aside from opinions expressed in the proper discharge of his duty to prosecute (e. g., in an argument on the admissibility of evidence), he should not give the court his opinion upon any point of law arising during the trial except when it is requested by the court in open court. When he addresses the court he will rise. The court may require him to reduce his arguments to writing.

e. Relations to 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 of the court that such copy has been so served. Except as otherwise directed by the appointing authority, 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 charges on a rehearing. He will also permit the defense to examine from time to time the orders appointing the court and all modifying orders.

Ordinarily his dealings with the defense will be through any counsel the accused may have. Thus if he desires to know how the accused intends to plead he will ask the regularly appointed defense counsel or other counsel, if any, of the accused. He will not attempt to induce a plea of guilty.

Except for unannounced findings and sentence the defense will be allowed to read the record of trial as it is written, and the trial judge advocate of a general court-martial, or of a special courtmartial in which a verbatim record is made, will furnish every person tried by the court who desires it a copy of the record of trial, including, when quested, a copy of all documentary exhibits, less unannounced findings and sentence. See in this connection 46b (Preparation of carbon copies); 48 (Clerks and orderlies); and 85b (Receipt or certificate of delivery).

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42. ASSISTANT TRIAL JUDGE ADVOCATE—a. Duties in general. An assistant trial judge advocate of a general or special court-martial shall be competent to perform any duty devolved by law, regulation, or the custom of the service upon the trial judge advocate of the court (A. W. 116). If the trial judge advocate is unable to authenticate the record of trial because of death, disability, or absence, it will be authenticated by the assistant trial judge advocate in lieu of the trial judge advocate if the former was actually present during the trial. See Article 33 and Appendix 6. If the trial advocate was absent during the trial and the assistant trial judge advocate conducted the trial, he is, for purposes of authentication, the trial judge advocate. He will perform those duties in connection with trials which the trial judge advocate may designate. See 103 and Article 19 as to oath.

b. Term "trial judge advocate" includes assistant. Wherever in this manual the trial judge advocate of a general

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court-martial is mentioned the term will be understood to include assistant trial judge advocates, if any, unless the context shows clearly that a different sense is intended.

43. DEFENSE COUNSEL-a. Selection; relief; absence. He will be carefully selected.

In any case in which the appointed trial judge advocate is a member of the Judge Advocate General's Corps or of the bar of a Federal court or the highest court of a State of the United States, the appointed defense counsel must be an officer who is similarly qualified. Although the trial judge advocate may be an officer of the Judge Advocate General's Corps, the defense counsel need not be an officer of such Corps, provided he is a member of the bar of a Federal court or the highest court of a State of the United States. See 6 and Article 11. No person who has acted as member, trial judge advocate, assistant trial judge advocate or investigating officer in any case shall subsequently act as defense counsel or assistant defense counsel in the same case unless he is expressly requested by the accused (A. W. 11).

It is a purpose of Article 11 to insure that an accused person shall have the right, subject to express waiver, to be represented at his trial by general or special court-martial by a legally qualified lawyer in every case in which the prosecution is conducted by an officer so qualified. Necessary action will be taken at all stages of the proceedings to provide such representation. See 6.

A report of facts will be made at once to the appointing authority for his appropriate action, whenever it appears to the president of the court or to the defense counsel himself that the latter is for any reason, including bias, prejudice, hostility toward the accused, disqualification as above noted or otherwise, unable promptly and impartially to perform his duties in any case. For a proper reason (e. g., preparation of another case) the court, if in session, otherwise the president, may with the express consent of the accused excuse from attendance during a trial such of the personnel of the defense as will not be required.

b. Duties. When the defense is not in charge of individual counsel the duties of defense counsel are those outlined in 45b. When the defense is in charge of individual counsel, civil or military, the

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duties of defense counsel as associate counsel are those which the individual counsel may designate.

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, civil or military, of his own choice pursuant to Article 17. If the accused expresses a desire to be represented by individual counsel, the defense counsel will immediately report the fact to the appointing authority through proper channels and take appropriate steps to secure and consult the requested counsel and render any other desired assistance in behalf of the accused. Unless the accused otherwise desires, the defense counsel will undertake the immediate preparation of the defense without waiting for the appointment or the retaining of any individual counsel.

c. Terms "counsel", "counsel for the accused", "defense counsel". The term "counsel" as used in this manual will be interpreted to include, unless otherwise indicated by the context, defense counsel (civil or military) and trial judge advocate. Whenever the phrase "counsel for the accused" or any similar phrase is used it is to be understood, unless otherwise indicated, to include appointed defense counsel and any individual counsel. The term "defense counsel" will be understood to include an assistant defense counsel, if any, unless the context shows that a different sense is intended.

44. ASSISTANT DEFENSE COUNSEL. An assistant defense counsel shall be competent to perform any duty devolved by law, regulation, or the custom of the service upon counsel for the accused (A. W. 116). But see 6, 43a. 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.

45. INDIVIDUAL COUNSEL FOR THE ACCUSED-a. Statutory rights of accused; detail of individual counsel. The accused shall have the right to be represented in his defense (general or special court-martial) by counsel of his own selection, civil counsel if he so provides, or military if such counsel be reasonably available, otherwise by the defense counsel duly appointed for the court pursuant to Article 11. Should the accused have counsel of his own selec

tion, the defense counsel and, if any, the assistant defense counsel, of the court shall, if the accused so desires, act as his associate counsel (A. W. 17). Civilian counsel will not be provided at the expense of the Government.

Application through the usual channels 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. When the application reaches an officer who is authorized to make the detail and to order any necessary travel, he will act thereon without delay and transmit through channels to the appointing authority his reply as to the availability of the requested counsel. His decision as to the availability of the requested counsel is subject to revision by his immediate superior on appeal by or on behalf of the accused.

b. Duties in general; freedom in conducting defense. An officer or other military person acting as individual counsel for the accused before a general or special court-martial will perform such duties as usually devolve upon the counsel for a defendant before civil courts in a criminal case. He will guard the interests of the accused by all honorable and legitimate means known to the law. It is his duty to undertake the defense regardless of his personal opinion as to the guilt of the accused; to disclose to the accused any interest he may have in connection with the case, any ground of possible disqualification, and any other matter which might influence the accused in the selection of counsel; to represent the accused with undivided fidelity, and not to divulge his secrets or confidence. It is improper for him to assert in argument his personal belief in the accused's innocence or to tolerate any manner of fraud or chicane.

He should make timely request to the trial judge advocate to secure the attendance of defense witnesses, and with a view to saving time, labor and expense, he should cooperate with the trial judge advocate in the preparation of depositions and in appropriate stipulations as to unimportant or uncontested matters. See 140b (Stipulations).

Before the trial he will advise an accused soldier of his right to have soldiers as members of the court. See Article 4. If the accused elects to exercise this right, the defense counsel will prepare the written request required by Article 4 and forward it without delay to the appointing

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