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preferral of charges, or the commencement of an investigation directed to make recommendations Concerning disciplinary action, until the imposition of nonjudicial punishment, Completion of trial (court-martial Sessions) or disposition of the case without trial. These regulations also prescribe guidelines for the release or dissemination of information to public news agencies, to other public news media, or to other persons or agencies for unofficial purposes. (3) Release of information. (i) As a general matter, release of information pertaining to accused persons should not be initiated by persons in the naval service. Information of this nature should be released only upon Specific request therefor, and, Subject to the following guidelines, should not exceed the scope of the inquiry concerned. (ii) Except in unusual circumstances, information which is subject to release under the regulation should be released by the cognizant public affairs officer; requests for information received from representatives of news media should be referred to the public affairs Office for action. When an individual is Suspected or accused of an offense, Care should be taken to indicate that the individual is alleged to have Committed Or is suspected or accused of having Committed an Offense, as distinguished from stating or implying that the accused has committed the Offense or of fenses. (4) Information Subject to release. On inquiry, the following information ConCerning a person accused or Suspected of an offense or offenses may generally be released except as provided in paragraph (6) of this Section: (i) The accused’s name, grade, age, unit, regularly assigned duties, duty Station, and Sex. (ii) The substance of the Offenses of which the individual is accused or suspected. (iii) The identity of the victim of any alleged or suspected offense, except the victim of a sexual offense. (iv) The identity of the apprehending and investigative agency, and the identity of accused’s counsel, if any. (v) The factual circumstances immediately Surrounding the apprehension of the accused, including the time and

place of apprehension, resistance, purSuit, and use of weapons. (vi) The type and place of custody, if any. (vii) Information which has become a part of the record of proceedings of the Court-martial in open session. (viii) The scheduling of any stage in the judicial process. (ix) The denial by the accused of any offense or offenses of which he may be accused or Suspected (when release of Such information is approved by the Counsel of the accused). (5) Prohibited information. The following information Concerning a person accused or Suspected of an offense or Offenses generally may not be released, except as provided in paragraph (a)(6) of this Section. (i) Subjective Opinions, observations, Or CommentS COncerning the accused’s character, demeanor at any time (except as authorized in paragraph (4)(v) of this section), or guilt of the offense or Offenses involved. (ii) The prior Criminal record (including other apprehensions, charges or trials) or the character or reputation of the accused. (iii) The existence Or Contents of any Confession, admission, Statement, or alibi given by the accused, or the refusal or failure of the accused to make any Statement. (iv) The performance Of any examination or test, such as polygraph examinations, chemical tests, ballistics tests, etc., or the refusal or the failure of the accused to Submit to an examination Or test. (v) The identity, testimony, or credibility of possible witnesses, except as authorized in paragraph (4)(iii), of this Section. (vi) The possibility of a plea of guilty to any offense charged or to a lesser of fense and any negotiation Or any offer to negotiate respecting a plea of guilty. (vii) References to confidential Sources or investigative techniques or procedures. (viii) Any other matter when there is a reasonable likelihood that the disSemination of such matter will affect the deliberations of an investigative body or the findings or sentence of a Court-martial Or Otherwise prejudice the due administration of military justice either before, during, or after trial. (6) Eacceptional cases. The provisions of this section are not intended to restrict, the release of information designed to enlist public assistance in apprehending an accused or suspect who is a fugitive from justice or to warn the public of any danger that a fugitive accused or suspect may present. Further, since the purpose of this section is to prescribe generally applicable guidelines, there may be exceptional circumstances which warrant the release of information prohibited under paragraph (a)(5) of this section or the nonrelease of information permitted under paragraph (a)(4) of this Section. Attention should be given to the Secretary of the Navy instructions inplementing the Freedom of Information Act (5720.42 series) and the Privacy Act (5211.5C series). Consultation with the command judge advocate, if one is a Ssigned, or with the cognizant Naval Legal Service Office concerning interpretation and application of these instructions is encouraged. (b) Spectators. (1) The sessions of courts-martial shall be open to the public, which includes members of both the military and Civilian Communities. In order to maintain the dignity and decorum of the proceedings or for other good cause, the military judge may reasonably limit the number of Spectators in, and the means of access to, the courtroom, exclude Specific persons from the courtroom, and close a sesSion. Video and audio recording and taking of photographs, except for the purpose of preparing the record of trial, in the Courtroom during the proceedings and radio or television broadcasting of proceedings from the courtroom shall not be permitted. The military judge may, as a matter of discretion, permit Contemporaneous closed-circuit video or audio transmission to permit viewing or hearing by an accused removed from the courtroom or by spectators when courtroom facilities are inadequate to accommodate a reasonable number of spectators. (2) At pretrial hearings. In any preliminary hearing, including a hearing conducted pursuant to 10 U.S.C. 832 or a court of inquiry or investigation conducted pursuant to the Manual of the

Judge Advocate General, the presiding officer, upon motion of the Government or the defense or upon his motion, may direct that all or part of the hearing be held in closed session and that all persons not connected with the hearing be excluded therefrom. The decision to exclude Spectators shall be based on the ground that dissemination of evidence, information, or argument presented at the hearing may disclose matters that will be inadmissible in evidence at a Subsequent trial by court-martial and is therefore likely to interfere with the right of the accused to a fair trial by an impartial tribunal.

[38 FR 5997, Mar. 6, 1973, as amended at 47 FR 49644, Nov. 2, 1982; 50 FR 23800, June 6, 1985]

Subport D [Reserved]

Subport E-Miscelloneous Motters

§ 719. 138 Fees of civilian witnesses.

(a) Method of Payment. The fees and mileage of a civilian witness shall be paid by the disbursing Officer of the Command of a convening authority or appointing authority or by the disbursing Officer at Or near the place where the tribunal SitS or where a deposition is taken when Such disbursing Officer is presented a properly completed public voucher for Such fees and mileage, signed by the witness and certified by One of the following: (1) Trial counsel or assistant trial Counsel of the Court-martial; (2) Summary Court Officer; (3) Counsel for the Court in a court of inquiry; (4) Recorder Or junior member Of a board to redress injuries to property, Or (5) Military or civil officer before whom a deposition is taken.

The public voucher must be accompanied by a Subpoena or invitational orders (Joint Travel Regulations, vol. 2, chap. 6), and by a certified copy of the order appointing the Court-martial, court of inquiry, or investigation. If, however, a deposition is taken before charges are referred for trial, the fees and mileage of the witness concerned shall be paid by the disbursing officer at or near the place where the deposition is taken upon presentation of a public voucher, properly completed as hereinbefore prescribed, and a CCOmpanied by an order from the officer who authorized the taking of the deposition, Subscribed by him and directing the disbursing officer to pay to the witness the fees and mileage Supported by the public voucher. When the civilian witness testifies OutSide the United States, its territories and possessions, the public voucher must be accompanied by a certified copy of the Order appointing the court-martial, court of inquiry, or investigation, and by an Order from the Convening authority Or appointing authority, Subscribed by him and directing the disbursing officer to pay to the witness the fees and mileage supported by the public vouch€1. (b) Obtaining money for advance tender or payment. Upon written request by One of the officers listed in paragraph (a) of this Section, the disbursing Officer under the Command of the convening or appointing authority, or the disbursing officer nearest the place where the witness is found, will, at once, provide any of the persons listed in paragraph (a) of this section, or any other Officer or person designated for the purpose, the required amount of money to be tendered or paid to the witness for mileage and fees for One day of attendance. The person so receiving the money for the purpose named shall furnish the disbursing officer concerned With a proper receipt. (C) Reimbursement. If an Officer Charged with Serving a subpoena pays from his personal funds the necessary fees and mileage to a witness, taking a receipt therefor, he is entitled to reinbursement upon Submitting to the disbursing Officer Such receipt, together with a certificate of the appropriate person named in paragraph (a) of this Section, to the effect that the payment WaS neCeSSary. (d) Certificate of person before whom deposition is taken. The certificate of the person named in paragraph (a) of this Section, before whom the witness gave his deposition, will be evidence of the fact and period of attendance of the witness and the place from which summoned. (e) Payment of accrued fees. The wit– neSS may be paid accrued fees at his re

quest at any time during the period of attendance. The disbursing officer will make Such interim payment(s) upon reCeipt of properly executed certifiCate(s). Upon his discharge from attendance, the witness will be paid, upon the execution of a certificate, a final amount covering unpaid fees and travel, including an amount for return travel. Payment for return travel will be made upon the basis of the actual fees and mileage allowed for travel to the Court, or place designated for talking a deposition. (f) Computation. Travel expenses shall be determined on the basis of the Shortest usually traveled route in acCordance with official Schedules. ReaSonable allowance will be made for unavoidable detention. (g) Nontransferability of accounts. ACCounts of civilian witnesses may not be transferred or assigned. (h) Signatures. Signatures of wit– nesses signed by mark must be witneSSed by two perSOnS. (i) Rates for civilian witnesses preScribed by law—(1) Civilian witnesses not in Government employ. A Civilian not in Government employ, who is compelled or required to testify as a witness before a Naval tribunal at a specified place or to appear at a place where his deposition is to be taken for use before a court or fact-finding body, will receive fees, Subsistence, and mileage as provided in 28 U.S.C. 1821. Witness and Subsistence fees are not prorated. InStead any fractional part of a Calendar day expended in attendance or qualifying for Subsistence entitles the witness to payment for a full day. Further, nothing in this paragraph shall be conStrued as authorizing the payment of attendance fees to witnesses for: (i) Attendance or travel which is not performed either as a direct result of being compelled to testify pursuant to a subpoena, or as a direct result of invitational Orders; Or (ii) For travel which is performed prior to being duly summoned as a witneSS; Or (iii) For travel returning to their places of residence if the travel from their places of residence does not qualify for payment under this paragraph. (2) Civilian witnesses in Government employ. When Summoned as a Witness, a civilian in the employ of the Government shall be paid as authorized by Joint Travel Regulations.

(j) Supplemental ComStruction of Section. Nothing in this paragraph shall be construed as permitting or requiring the payment of fees to those witnesses not requested Or whose testimony is determined not to meet the standards of relevancy and materiality set forth in accordance with MCM, 1984, R.C.M. 703.

(k) Erpert witnesses (1) The convening authority will authorize the employment of an expert witness and will fix the limit of compensation to be paid such expert on the basis of the normal Compensation paid by United States attorneys for attendance of a witness of Such standing in United States courts in the area, involved. Information ConCerning Such normal compensation may be obtained from the nearest Officer exercising general court—martial jurisdiction having a judge advocate assigned in other than an additional duty, temporary duty, or temporary additional duty capacity. Convening authorities at overseas commands will adhere to fees paid such witnesses in the Hawaiian area and may obtain information as to the limit of such fees from the Commander, Naval Base, Pearl Harbor. See paragraph (1) of this Section for fees payable to foreign nationals.

(2) The provisions of paragraph (i) of .

this Section are applicable to expert witnesses. However, the expert witness fee prescribed by the convening authority will be paid in lieu of ordinary attendance fees on those days the witness is required to attend the court. (3) An expert witness employed in strict accordance with MCM, 1984, R.C.M. 703(d), may be paid compensation at the rate prescribed in advance by the official empowered to authorize his employment (11 Comp. Gen. 504). In the absence of such authorization, no fees other than ordinary witness fees may be paid for the employment of an individual as an expert witness. After an expert Witness has testified pursuant to Such employment, the certificate of one of the officers listed in SubSection a above, when presented to the disbursing officer, shall also enclose a

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(a) Report of Allegations of Misconduct Or Disability. When information comes to the attention of a member of a Court-martial, a military judge, trial Or defense Counsel, staff judge advoCate, member of the Navy-Marine Corps Court of Military Review or Other directly interested or concerned party that a judge advocate or civilian who is acting or is about to act as Counsel before a proceeding conducted under the UCMJ or MCM is or has been unable to discharge properly all the duties of his or her position by reason of mental or physical disability or has been engaged in professional or perSonal misconduct of such a serious nature as to demonstrate that he or she is lacking in integrity or is failing to meet the ethical standards of the profession or is otherwise unworthy or unqualified to perform the duties of a judge advocate or attorney, such information Should be reported to the Commanding Officer of that judge advocate Or, in the case of civilian counsel, to the officer exercising general courtmartial jurisdiction Over the Command Convening the proceedings Or to the Judge Advocate General. (b) Form of Report. The report shall: (1) Be in writing, under Oath or affir– mation, and made and signed by the individual reporting the information. (2) State that the individual reporting the information has personal knowledge or belief or has otherwise received reliable information indicating that: (i) The Counsel is, or has been, unable to discharge properly all the duties of his or her office by reason of mental or physical disability; Or (ii) The counsel is or has been engaged in professional or personal misconduct of such a Serious nature as to demonstrate that he or she is lacking in integrity or is failing to meet the ethical standards of the profession; Or (iii) The counsel is unworthy or unqualified to perform his or her duties; (3) Set forth the grounds of the allegation together with all relevant facts; and (4) Be forwarded to the appropriate authority as set forth in paragraph (a). (c) Consideration of the Report—(1) Action by the Commanding Officer of a judge advocate. Upon receipt of the report, the commanding officer: (i) Shall dismiss any report relating to the performance of a judge advocate more properly appealed under law or any report that is frivolous, unfounded, or vague and return it to the reporting individual; (ii) May make further inquiry into the report at his or her discretion to determine the merits of the report. The commanding officer may appoint an Officer to investigate informally the allegations of the report to determine whether further action is warranted. Any officer so appointed should be a judge advocate Senior in rank to the judge advocate being investigated; (iii) May take appropriate action to address and dispose of the matter being mindful of such measures as warning, counseling, caution, instruction, proceedings in contempt, therapy, and Other punitive Or administrative a Ction; Or (iv) Shall, if the Commanding Officer is of the opinion that evidence of disability or professional or personal misconduct exists, and that remedial measures short of Suspension Or decertification are not appropriate Or will not be effective, forward the original complaint, a written report of the inquiry or investigation, all other relevant information, and his Or her Comments and recommendations to the Officer in the chain. Of Command exercising general court-martial authority. (2) Action by Officer Ea:ercising General Court-Martial Authority. (i) Upon receipt of a report of an allegation of misconduct or disability of a counsel,

the officer exercising general courtmartial convening authority:

(A) May take the action authorized by subsections (c)(1)(i), (ii) or (iii); or

(B) Shall, if he or she considers that evidence of disability or professional or personal misconduct exists and that Other remedial measures short of suspension or decertification are not appropriate or will not be effective, appoint a board of Officers to investigate the matter and to report its findings and its recommendations. This board shall be comprised of at least three of ficers, each an Article 27(b), Uniform Code of Military Justice, certified judge advocate. If practicable, each of the officers of the board should be senior to the judge advocate under investigation. If the counsel is a member of the Marine Corps, a majority of the members of the board Should be Marine Corps judge advocates. The senior officer of the board shall cause notice to be given to the counsel, judge advocate or civilian (respondent), informing him Or her of the misconduct or other disqualification alleged and affording him Or her the Opportunity to appear before the board for a hearing. The respondent Shall be permitted at least ten (10) days’ notice prior to the hearing. Failure to appear on a Set date after notice Shall constitute waiver of appearance, absent good cause shown. The respondent Shall be generally afforded the rights of a party as Set out in Section 0304 of this Manual, except that, in the event the judge advocate respondent wishes to have military counsel appointed, he or she shall not have the right to Select or identify a particular military counsel. A civilian respondent may not be represented by military counsel, but may be represented by civilian Counsel at no expense to the Government. Upon ascertaining the relevant facts after notice and hearing, a written report of the findings and recommendations of the board Shall be made to the Officer who convened the board. In all cases, a written copy of the board’s findings and recommendations shall be provided to the respondent. The respondent shall be given an opportunity to comment on the report in Writing.

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