Page images

solidates provisions as to types of courts martial and number of members. Army and Air Force terminology has been adopted and designated the three types of courts. The maximum limits of the number of members is believed unnecessary. The law officer of a general court martial replaces the law member under the present Articles of War. The law officer is specified in paragraph (1) to show that he is not a member. Article 17. Jurisdiction of courts martial in general

Subdivision (a) authorizes reciprocal jurisdiction among the armed forces, but makes the exercise of such jurisdiction by any force subject to regulations prescribed by the President. Such regulations will enumerate those situations in which one armed force may try personnel of another armed force. This method of providing for the exercise of reciprocal jurisdiction permits flexibility, in that new situations for which the exercise of such jurisdiction may be desirable, can be provided for as they arise.

The provision in subdivision (b) is particularly applicable to cases where reciprocal jurisdiction has been exercised and is therefore placed in this article. The same practice will be followed in all court-martial cases, however. The disposition of records under article 65 is controlled by this subdivision. Article 18. Jurisdiction of general courts martial.

This article is derived from AW 12. The punishments which may be adjudged are changed from those "authorized by law or the customs of the service” to those “not forbidden by this code” because the law and customs of each of the services differ. Cruel and unusual punishments are forbidden in the code; other punishments which may be adjudged will be made uniform by the regulations prescribed by the President under article 56.

It will be noted in the punitive articles, articles 77–134, that the death penalty can be adjudged only when specifically authorized for the violation of a specific punitive article. Article 19. Jurisdiction of special courts martial

This article is derived from AW 13. Special courts martial are given the authority to try capital cases under such regulations as the President may prescribe instead of when the officer with general courtmartial jurisdiction over the case authorizes. The Navy proposes this procedure so that prior blanket authority may be obtained for capital offenses to be tried by special courts aboard ship where circumstances make it desirable, since it is not practicable to refer such a case to the officer with general court-martial jurisdiction. Death is added to the list of punishments which a special court martial may not adjudge, to cover the cases which a special court tries which would otherwise be capital cases. Other restrictions on punishment are adopted from AW 13. It is intended that special courts martial shall not have jurisdiction to try offenses for which a mandatory punishment has been prescribed by this code.

The provision in AW 13 that a bad-conduct discharge adjudged by a special court martial is subject to approval by an officer with general court martial jurisdiction has been deleted from this article. The review of special courts-martial records and the execution of sentences are covered in articles 65, 66, and 71 of this code.

References: AW 13 and proposed AGN, articles 17 and 20.

Article 20. Jurisdiction of summary courts martial

The right to refuse trial by summary court martial is made absolute, except for the case where a person has been permitted to refuse punishment under article 15.

References: AW 14 and proposed AGN, articles 15 and 16. Article 21. Jurisdiction of courts martial not exclusive

This article preserves existing Army and Air Force law which gives concurrent jurisdiction to military tribunals other than courts martial. The language of AW 15 has been preserved because it has been construed by the Supreme Court (Ex Parte Quirin, 317 U. S. 1 (1942)).

References: AW 15; proposed AGN, article 5 (f). Article 22. Who may convene general courts martial

This article is derived from AW 8. Provisions for Navy, Air Force, and Coast Guard convening authorities are added. Paragraphs (6) and (7) permit the President and the Secretaries of the Army, Navy, Air Force, and Treasury (for the Coast Guard when not serving with the Navy) to empower other commanding officers to convene general courts martial. See article 1 for definition of Department.”

Subdivision (b) is derived from AW 8. The word "accuser" is used in place of "accuser or prosecutor," and "accuser" is defined in article 1 in order to clarify its meaning.

References: AW 8; AGN, article 38.
Article 23. Who may convene special courts martial

This article is derived from AW 9. Provisions for all the armed forces have been added. An "officer in charge” is an officer of the naval service or Coast Guard who is not known by the title of “commanding officer” but exercises similar authority. Subdivision (b) conforms to article 22.

References: AW 9; AGN, article 26.
Article 24. Who may convene summary courts martial

This article is derived from AW 10. Provisions for all the armed forces have been added. It is felt appropriate that all persons empowered to convene superior courts martial should also have power to convene inferior courts martial.

References: AW 10; AGN, article 64; proposed AGN, article 15. Article 25. Who may serve on courts martial

Subdivisions (a), (b), and (c) make officers, warrant officers, and enlisted persons competent to sit as members of courts martial of any armed force, without regard to whether they are members of the same armed force as the convening authority, or of the same armed force as the accused. Placing no limitation on competency in this respect will give the convening authority a maximum number of persons to draw on for membership of a court martial in a situation where he is in command of several small units of different armed forces, or will permit the appointment to a court of persons belonging to the same armed force as the accused in a case in which reciprocal jurisdiction is being exercised. In such cases it is contemplated that the President's regulations on reciprocal jurisdiction will specify what percentage of members will be from the same armed force as

[blocks in formation]

the accused. (See art. 17.) As a practical matter, the appointment of mixed courts will not be a common practice.

Subdivision (c) limits the competency of enlisted persons to cases where they are not members of the same unit as the accused. By section 212 of Public Law 759, Eightieth Congress, Congress similarly limited competency to enlisted persons not assigned to the same company or corresponding military unit. A corresponding military unit aboard a ship, which, though it may in some cases be a larger group than the Army company, is the same kind of integrated body, living and working in close association.

The last sentence of the first paragraph of subdivision (c) was added to make it possible to proceed with the trial where competent enlisted persons cannot be obtained. This is to avoid long delay in the administration of justice and the expensive process, which might otherwise be necessary, of transporting enlisted persons great distances to serve as court members. Such delays and expenses would arise in connection with offenses committed on ships at sea or in isolated units ashore, such as remote weather stations. The language of the subdivision makes it clear that mere inconvenience is no ground for proceeding with the trial without enlisted persons on the court, and the requirement of a detailed written statement including the reasons for such failure insures that the purpose of the subdivision will not be arbitrarily defeated.

References: AW 4, 16; AGN, article 39; proposed AGN, article 24 (a). Article 26. Law officer of a general court martial

This article is derived from AW 8 with modifications. The law officer is required to be a member of the bar whether or not he is a judge advocate or law specialist. The change in the position of the law officer is reflected in subdivision (b) which requires the accused and counsel to be present when the law officer consults with the court, other than on the form of the findings, and states that the law officer shall not be a voting member of the court. (See art. 51 as to rulings and duties of the law officer, and art. 39 as to when the law officer must be present.)

References: AW 8; proposed AGN, article 24 (b)
Article 27. Appointment of trial counsel and defense counsel

Subdivision (a) of this article incorporates the opening clause and the fourth and fifth provisos of AW 11. The trial judge advocate is renamed the trial counsel, and the right of the accused to have a person requested by him act as defense counsel is subject to the availability of that person. (See art. 38.)

Paragraph (1) of subdivision (b) incorporates the first proviso of AW 11, but the requirement that counsel be qualified as set forth therein is no longer subject to the exception allowed where such qualified persons are not available. Paragraph (2) of this subdivision, the requirement that counsel be certified by the Judge Advocate General, is drawn from article 24 (b) of the proposed AGN.

Subdivision (c) is based on the second proviso of AW 11. It is made applicable only to special courts martial, since the qualification requirements of subdivision (b) with respect to counsel for general courts martial are not subject to exception.

References: AW 11; proposed AGN, articles 18 (b), 24 (b).

Article 28. Appointment of reporters and interpreters

This article is derived from AW 115. The power to appoint reporters and interpreters, however, has been shifted from the president of the court to the convening authority since the latter will have control of the available personnel.

References: AW 115; Naval Courts and Boards, section 361. Article 29. Absent and additional members

This article is based on proposed AGN, article 27, and limits the reasons for excusing members of general and special courts martial.

Subdivisions (b) and (c) specify the procedure for replacing absent members of general and special courts martial. Where a complete transcript of the testimony is kept, only the record need be read to the new members. However, in special court-martial cases where a complete record may not be kept, only such previous evidence as is stipulated by the parties may be deemed to have been introduced.

New members are subject to challenge for cause, and if the parties have not previously exercised their right for peremptory challenges, they may exercise such right against new members. Article 30. Charges and specifications

Subdivision (a) is derived from AW 46a and is new for the Navy. The initial procedure in the Navy is now conducted on the basis of a complaint upon which formal charges and specifications are subsequently based. Subdivision (b) requires disposition of the charges as soon as possible and provides for the notification of the accused. Article 98 makes it an offense to unnecessarily delay the disposition of

a case.

This article should be read in conjunction with articles 31-35 which deal with procedures before trial.

References: AW 46a; AGN, article 43.
Article 31. Compilsory self-incrimination prohibited

Subdivision (a) extends the privilege against self-incrimination to all persons under all circumstances. Under present Army and Navy provisions only persons who are witnesses are specifically granted the privilege. Subdivision (b) broadens the comparable provision in AW 24 to protect not only persons who are accused of an offense but also those who are suspected of one. Subdivision () is similar to AW 24 in that the privilege against self-degradation is granted to witnesses before a military tribunal and persons who make depositions for use before a military tribunal. It is made clear that this privilege cannot be invoked where the evidence is material to the issue—where it might be crucial in the determination of the guilt or innocence of an accused. Sub livision (d) makes statements or evidence obtained in violation of the first three subdivisions inadmissible only against the person from whom they were obtained. This conforms with the theory that the privilege against self-incrimination and self-degradation is a personal one.

The intentional violation of any of the provisions of this article constitutes an offense punishable under article 98.

It is unnecessary to provide in this article that the failure of an accused to testify does not create a presumption against him. (See title 18, L. S. C., sec. 3481.)

References: AW 24; AGN, article 42 (c).

Article 32. Investigation

This article is derived from AW 46b and is new to the Navy. Subdivision (c) is added to provide for a case where a court of inquiry or other investigation has been held wherein the accused was afforded the rights required by subdivision (b).

Subdivision (d) is added to prevent this article from being construed as jurisdictional in a habeas corpus proceeding.

Failure to conduct the investigation required by this article may be grounds for reversal by a reviewing authority under this code. It is the intention of the committee that pretrial investigations be mandatory on military authorities who have the obligation to hold them, but that a failure to conduct such an investigation or less than full compliance, which does not materially prejudice the substantial rights of an accused, shall not constitute jurisdictional error. To hold otherwise would subject all cases involving a plea of guilty to reversal on jurisdictional error for failure to conduct a pretrial investigation. Certainly the committee does not intend to endorse any provisions which will bring added delays and unnecessary technicalities into the system of military justice. On the other hand, it should be noted that an officer who has the responsibility to order a pretrial investigation who intentionally fails to have such an investigation conducted, and such failure substantially prejudices the rights of an accused, would be guilty of an offense under article 98 of this code. Article 33. Forwarding of charges

This article is derived from AW 46c and is intended to insure an expeditious processing of charges and specifications in general courtmartial trials. Article 34. Advice of stat judge advocate and reference for trial.

This article is derived from AW 47b. Subdivision (b) makes clear that in addition to formal corrections, changes in the charges may be made in order to make them conform to the evidence brought out in the investigation without requiring that new charges be drawn and sworn to. The MCM provides that if an essentially different offense is charged as a result of the investigation, the convening authority should direct a new investigation to allow the accused to exercise his privileges with respect to new or different matter alleged.

References: AW 47b; MCM, paragraph 34 (d). Article 35. Serrice of charges

This article provides for the serving of charges upon the accused. It also provides that, in time of peace, no person shall be brought to trial before a general court martial, against his objection, before 5 days after the service of charges upon him, or before 3 days after service of charges upon him in a special court-martial case.

References: AW 46 (C); AGN, article 43; proposed AGN, article 37. Article 36. President may prescribe rules

This article is derived from AW 38. Proposed AGN, article 48 is similar except that the Secretary of the Navy would be authorized to prescribe rules instead of the President. This article standardizes this authority in the President. The committee has amended the article to provide that all rules and regulations prescribed by the President shall be uniform insofar as practical.

« PreviousContinue »