Executive Order 10214—Prescribing the Manual for Courts-Martial, United States, 1951

By virtue of the authority vested in me by the act of Congress entitled "An act to unify, consolidate, revise, and codify the Articles of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard, and to enact and establish a Uniform Code of Military Justice," approved May 5, 1950 (64 Stat. 107), and as President of the United States, I hereby prescribe the following Manual for Courts-Martial to be designated as "Manual for Courts-Martial, United States, 1951." This manual shall be in force and effect in the armed forces of the United States on and after May 31, 1951, with respect to all court-martial processes taken on and after May 31, 1951: Provided, That nothing contained in this manual shall be construed to invalidate any investigation, trial in which arraignment has been had, or other action begun prior to May 31, 1951; and any investigation, trial, or action so begun may be completed in accordance with the provisions of the applicable laws, Executive orders, and regulations pertaining to the various armed forces in the same manner and with the same effect as if this manual had not been prescribed: Provided further, That nothing contained in this manual shall be construed to make punishable any act done or omitted prior to the effective date of this manual which was not punishable when done or omitted: Provided further, That the maximum punishment for an offense committed prior to May 31, 1951, shall not exceed the applicable limit in effect at the time of the commission of such offense: And provided further, That any act done or omitted prior to the effective date of this manual which constitutes an offense in violation of the Articles of War, the Articles for the Government of the Navy, or the disciplinary laws of the Coast Guard shall be charged as such and not as a violation of the Uniform Code of Military Justice; but, except as otherwise provided in the first proviso, the trial and review procedure shall be that prescribed in this manual. KEY TO REFERENCES, CITATIONS, AND ABBREVIATIONS The Manual for Courts-Martial, United States, 1951, may be cited as "MCM, 1951." In the manual the Uniform Code of Military Justice is referred to as "the code." The terms defined in Article 1 of the code are used throughout the manual in the sense of the respective definitions unless the context indicates to the contrary. In the manual references and citations appear in the following forms: (INSERT TABLE, Page 409, CFR Title 3 - The President 1949-1953 Compilation) Chapter 1-Military Jurisdiction Sources-Exercise 1. SOURCES. The sources of military jurisdiction include the Constitution and international law. International law includes the law of war. The specific provisions of the Constitution relating to military jurisdiction are found in the powers granted to Congress, in the authority vested in the President, and in a provision of the fifth amendment. 2. EXERCISE. Military jurisdiction is exercised by a belligerent occupying enemy territory (military government); by a government temporarily governing the civil population of a locality through its military forces, without the authority of written law, as necessity may require (martial law); by a government in the execution of that branch of the municipal law which regulates its military establishment (military law); and by a government with respect to offenses against the law of war. The agencies through which military jurisdiction is exercised include: Military Commissions and Provost Courts for the trial of offenses within their respective jurisdictions. Subject to any applicable rule of international law or to any regulations prescribed by the President or by any other competent authority, these tribunals will be guided by the applicable principles of law and rules of procedure and evidence prescribed for courts-martial. Courts-Martial-General, Special, and Summary-for the trial of offenders against military law and, in the case of general courts-martial, of persons who by the law of war are subject to trial by military tribunals. Commanding Officers and Officers in Charge exercising non-judicial powers under Article 15. Courts of Inquiry for the investigation of any matter referred to such court by competent authority. See Article 135. Under the provisions of Article 140, the authority to promulgate regulations for the governance of courts of inquiry is hereby delegated to the Secretaries of the Departments. Chapter II-Courts-Martial CLASSIFICATION-COMPOSITION 3. CLASSIFICATION. Courts-martial are classified as general, special, and summary courts-martial (Art. 16). 4. COMPOSITION-a. Who may serve as members. Any officer on active duty with the armed forces shall be eligible to serve on courts-martial (Art. 25a). Any warrant officer on active duty with the armed forces shall be eligible to serve on general and special courts-martial for the trial of any person other than an officer (Art. 25b). Any enlisted person on active duty with the armed forces shall be eligible to serve on general and special courts-martial for the trial of any enlisted accursed who has personally requested in writing, prior to the convening of the court (61i), that enlisted persons serve on it (Art. 25c). No distinction exists among the various classes of officers or of warrant officers and enlisted persons on active duty with the armed forces, but the term "active duty" as herein used refers to the status of being in the active Federal service of any of the armed forces under a competent appointment or enlistment or pursuant to a competent muster, order, call, or induction. Retired personnel of any Regular component and personnel of any Reserve component of the armed forces are eligible to serve on courts-martial only when they are in an active duty status. Personnel of the Coast and Geodetic Survey and Public Health Service are eligible to serve on courts-martial only when they are on active duty and assigned to duty with an armed force. No person shall be eligible to sit as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case (62f; Arts. 1(11), 25d(2)), or, in case of a rehearing or a new trial if he was a member of the court which first heard the case (62f; Art. 63b). No enlisted person may sit as a member of a court-martial for the trial of another enlisted person who is a member of the same unit (Art. 25c(1). The word "unit" as herein used shall mean any regularly organized body as defined by the Secretary of a Department, but in no case shall it be a body larger than a company of the Army, a squadron of the Air Force, or a ship's crew, or a body corresponding to one of them (Art. 25c(2)). Departmental definitions made pursuant to Article 25c(2) are as follows: Army. A "unit" of the Army in the sense of Article 25c is a company, battery, troop, detachment, or other organization of the Army for which a separate morning report is prepared. Navy and Coast Guard. A "unit" of the Navy or the Coast Guard in the sense of Article 25c is a ship, company, detached command, or other organization for which a separate unit personnel diary is prepared. Air Force. A "unit" of the Air Force in the sense of Article 25c is a squadron or other organization of the Air Force for which a separate morning report is prepared. Arrest, confinement, or suspension from rank renders a person ineligible to sit as a member of a court-martial. For other cases in which a person should not sit as a member of a general or special court-martial and for grounds for challenge, see 62f. The availability of certain persons for detail may be restricted by departmental regulations. b. Number of members. General courts-martial shall consist of a law officer and any number of members not less than five. The law officer is not a member of the court. Special courts-martial shall consist of any number of members not less than three. Summary courts-martial shall consist of one officer (Art 16). c. Rank of members. An officer may be tried only by a court-martial composed of officers. A warrant officer may be tried by a court-martial composed of officers or of officers and warrant officers (Art. 25a, b). When it can be avoided, no person in the armed forces shall be tried by a court-martial any member of which is junior to him in grade or relative rank (Art. 25d(1) nor, in the case of an officer, by those below him on the same promotion list. Whenever practicable, the senior member of a general or special court-martial should be an officer whose rank is not below that of lieutenant of the Navy or Coast Guard or captain of the Army, Air Force, or Marine Corps. An enlisted person who has requested in writing that enlisted persons serve on the general or special court-martial which will try his case shall not be tried by a court the membership of which does not include enlisted persons in a number comprising at least one-third of the total membership of the court unless eligible enlisted persons cannot be obtained because of physical conditions or military exigencies. Where such persons cannot be obtained the court may be convened and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained (Art. 25c(1)). For example, where the only enlisted persons on duty at an isolated station or on board a ship at sea are members of the same unit (Art. 25c(2)) as the accused and no other enlisted persons can be obtained without manifest injury to the service, the convening authority may, in his sound discretion, direct that the trial be held without enlisted members. Mere inconvenience is not a ground for proceeding with a trial without enlisted persons. The detailed written statement appended to the record stating that enlisted persons could not be obtained as members is subject to review when the record of trial is examined under Articles 65, 66, and 69. Whenever practicable, a summary court should be an officer whose rank is not below that of lieutenant of the Navy or Coast Guard or captain of the Army, Air Force, or Marine Corps. d. Qualification of members. When convening a court-martial, the convening authority shall appoint as members thereof such persons as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament (Art. 25d(2)). If it is anticipated that complicated issues of law will be presented before a special court-martial, the convening authority should give consideration to appointing as a member of the court, if practicable, a lawyer qualified in the sense of Article 27c. As a general rule the convening authority should not, however, delay the disposition of cases in order to await the availability of such a lawyer. The determination of the convening authority as to practicability shall be final. e. Law officer for general court-martial. The authority convening a general court-martial shall appoint as law officer thereof an officer on active duty who is a member of the bar of a Federal court or of the highest court of a State of the United States and who is certified to be qualified for such duty by the Judge Advocate General of the armed force of which he is a member (Art. 26a). The order appointing a general court-martial will expressly state that the law officer is certified as qualified for such duty by the Judge Advocate General of the armed force of which he is a member. See appendix 4 for the form of statement of qualification. Failure to appoint a law officer of a general court-martial who is qualified as prescribed in Article 26a renders any proceeding of such court void. No person shall be eligible to act as law officer in a case if he is the accuser (Art. 1(11)) or a witness for the prosecution (63) or has acted as an investigating officer or counsel in the same case (Art. 26a). An officer who has served as a member should not be appointed as law officer for a rehearing (92) or a new trial (109, 110) of the same case. Prior participation in the same case as law officer, staff judge advocate, or legal officer to the convening authority may be a ground for challenge for cause. See 62f. f. Appointment of members and law officers from other commands of the same armed force. The convening authority may, with the concurrence of their proper commander, appoint as members of a court-martial or as law officer of a general court-martial eligible persons of the same armed force who are not otherwise under his command. Concurrence of the proper commander may be oral and need not be evidenced by the record of trial. g. Appointment of members and law officers from other armed forces-(1) General policy. Members of courts-martial should be members of the same armed force as the accused. There is no policy restriction on the appointment of law officers from among qualified officers under the command of the convening authority irrespective of the armed force of which such law officers are members. Whenever it is necessary to convene a court composed of members of more than one armed force, at least a majority of the membership of a general or special court-martial sitting for the trial of a case should be members of the same armed force as the accused unless exigent circumstances render it impracticable to obtain such members without manifest injury to the service. (2) Appointment of members and law officers from within a joint command or joint task force. The commanding officer of a joint command or joint task force who has been specifically empowered by the President or the Secretary of Defense to exercise jurisdiction over personnel of another armed force (13) may, in accordance with the policy stated in 4g(1) above, appoint as members of courts-martial or as the law officer of a general court-martial, eligible persons under his command who are members of the same armed force as the accused. When, to avoid manifest injury to the service, it is necessary to appoint members of any other armed forces to serve on such a court-martial, such appointments may be made as an exception to the policy announced in 4g(1). The commanding officer of a subordinate joint command or joint task force who has been authorized by the superior commander to exercise reciprocal special and summary court-martial jurisdiction (13) may, subject to similar restrictions, appoint as members of such courts-martial any eligible persons of his command. The superior commander may also make available to such subordinate convening authority other persons who are members of the accused's armed force in order that the court may be constituted in accordance with the policy announced in 4g(1). 3. Appointment from commands of other armed forces. In exceptional circumstances, with the concurrence of the Secretaries of the other Departments concerned, the Secretary of a Department may authorize a convening authority responsible to him to appoint personnel of other armed forces to serve on courts-martial in cases not contemplated by the provisions of 4g(2). Such a convening authority may appoint as members of courts-martial, and as law officer of a general court-martial, eligible members of other armed forces from among personnel made available for the purpose by their proper commander. For example, if a separate wing of the Air Force is temporarily based near an overseas naval station, and if the only available officers in the vicinity eligible to act as law officers are law specialists assigned to the naval station, the wing commander may appoint as law officer of a general court-martial for the trial of an airman a law specialist from those made available to him for the purpose by the commanding officer of the naval station, provided the wing commander has been authorized by the Secretary of the Air Force, with the concurrence of the Secretary of the Navy, to appoint naval personnel to serve on courts-martial. CHAPTER III-Courts-Martial CONVENING AUTHORITIES-APPOINTMENT OF TRIAL COUNSEL, DEFENSE COUNSEL, ASSISTANTS-APPOINTMENT OF REPORTERS AND INTERPRETERS 5. CONVENING AUTHORITIES-a. General courts-martial. (1) The President of the United States, the Secretary of a Department, and the commanding officers of commands designated in Article 22a may convene general courts-martial. (2) When a commanding officer is designated by the Secretary of a Department pursuant to article 22a(6) or empowered by the President pursuant to Article 22a(7) to convene general courts-martial, the appointing order will cite such authorization. See appendix 4 for form. (3) It is unlawful for an accuser to convene a general court-martial for the trial of the person so accused. When any commander who would normally convene the general court-martial is the accuser in a case, he shall refer the charges to a superior competent authority who will convene the court or designate another competent convening authority to exercise jurisdiction. A superior competent authority may convene the court to try any other case in a subordinate command if he so desires (Art. 22b). Thus, if the exigencies of the service interfere with the prompt disposition of cases, a superior competent to convene general courts-martial properly may convene courts for the trial of cases arising in a subordinate command. (4) An accuser is a person who signs and swears to charges, a person who directs that charges nominally be signed and sworn by another, or any other person who has an interest other than an official interest in the prosecution of the accused (Art. 1(11)). No person will be ordered to sign and swear to charges if he does not believe the allegations therein to be true in fact to the best of his knowledge and belief. The person who signs and swears to charges is always an accuser. Whether a commander who convened the court is the accuser in other cases is a question of fact. Action by a commander which is merely official and in the strict line of duty cannot be regarded as sufficient to disqualify him. For example, a commander may, without becoming the accuser in the case, direct a subordinate to investigate an alleged offense with a view to formulating and preferring appropriate charges if the facts disclosed by such investigation, should warrant preferring charges. The commander may thereafter refer such charges for trail as in other cases. (5) As Article 22 expressly designates those who have authority to convene general courts-martial, it follows that no one else has this authority and that anyone having this authority cannot delegate or transfer it to another. The authority of a commanding officer to convene general courts-martial is independent of his rank and is retained by him as long as he continues to be such a commander. The rules as to the devolution of command in case of the death, disability, or temporary absence of a commander are stated in departmental regulations. (6) An officer who has power to convene a general court-martial may determine the cases to be referred to it for trial and may dissolve it, but he cannot control the exercise by the court of the powers vested in it by law. In this connection, see Article 27. He may withdraw any specification or charge at any time unless the court has finally terminated the proceedings thereon by a finding or by a ruling which amounts to a finding of not guilty. See, however, Article 44c. b. Special courts-martial. (1) Any person who may convene a general court-martial and the commanding officers of commands designated in Article 23a may convene special courts-martial. When empowered by the Secretary of the Department concerned, an officer in charge of a command of the Navy or Coast Guard may convene special courts-martial (Art. 23a(7)). (2) The principles stated in 5a(2) to 5a(6), inclusive, apply to special courts-martial. See Article 23b as to accusers. (3) A squadron, battalion, or corresponding unit or command is "separate" or "detached" when isolated or removed from the immediate disciplinary control of a superior in such a manner as to make its commander primarily the one to be looked to by superior authority as the officer responsible for the discipline of the enlisted persons composing the command. Whenever there is doubt whether a command is detached in the sense of Article 23 the matter, if arising in the Army or the Air Force, will be referred to the officer exercising general court-martial jurisdiction over the command, and if arising in the Navy or the Coast Guard, to the flag or general officer in command or the senior officer present who designated the detachment. Such determination shall be final. The terms "separate" or "detached" are used in a disciplinary sense and are not necessarily limited to what constitutes separation or detachment in a physical or tactical sense. For instance, the commanding officer of a field artillery battalion which is part of an Army division, if responsible directly to the division commander for the discipline of the battalion, may appoint special courts-martial even though there is a division artillery commander who controls the battalion in other matters. Also, an Air Force squadron might be responsible directly to an air force for disciplinary matters although responsible to a group for its operations. In such a case, the squadron would be separate in the sense of Article 23a(4). The power of the squadron or battalion commander to appoint such courts is subject to the power of superior competent authority to reserve to himself the right to appoint special courts-martial for any or all subordinate units and detachments in his command. (4) A subordinate commander may exercise his power to appoint special courts-martial unless a competent superior reserves that power to himself and so notifies the subordinate. c. Summary courts-martial. Any person who may convene a general or special court-martial and the commanding officers of the commands designated in Article 24a may convene summary courts-martial. When empowered by the Secretary of the Department concerned, an officer in charge of a command of the Navy or Coast Guard may convene summary courts-martial (Art. 24a(4)). Summary courts-martial may, however, be convened in any case by superior competent authority when deemed desirable by him. When but one officer is present with a command or detachment he shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases brought before him (Art. 24b), and no order appointing the court need be issued. When more than one officer is present, a subordinate officer will be appointed summary court-martial. If the convening authority of a summary court-martial or the summary court officer is the accuser of the person or persons to be tried, it is discretionary with the convening authority whether he will forward the charges to superior authority with a recommendation that the summary court be appointed by the latter; but the fact that the convening authority or the summary court officer is the accuser in a particular case does not invalidate the trial. The principles stated in 5a(2), (5) and (6) and 5b(3) and (4) apply to summary courts-martial. 6. APPOINTMENT OF TRIAL COUNSEL, DEFENSE COUNSEL, ASSISTANTS-a. General. For each general and special court-martial the authority convening the court shall appoint a trial counsel and a defense counsel, together with such assistants as he deems necessary or appropriate. No person who has acted as investigating officer, law officer or court member in any case shall act subsequently as trial counsel, assistant trial counsel, or, unless expressly requested by the accused (61f(4); app. 8a), as defense counsel or assistant defense counsel in the same case. No person who has acted for the prosecution shall act subsequently in the same case for the defense, nor shall any person who has acted for the defense act subsequently in the same case for the prosecution (Art. 27a). Unless the contrary affirmatively appears of record, a person who, between the time the case has been referred for trial and the trial, has been an appointed counsel or assistant counsel of the court to which the case has been referred, shall be deemed to have acted as a member of the prosecution or the defense as the case may be. A person who has acted for the accused at a pretrial investigation or other proceedings involving the same general matter is ineligible to act thereafter for the prosecution. An accuser, unless expressly requested by the accused (61f(4); app.8a), shall not act as defense counsel or assistant defense counsel in the same case. The power of appointment under Article 27 cannot be delegated. The general principles of 4f and 4g(3) are applicable to the appointment of counsel and assistants. The commanding officer of a joint command or a joint task force may appoint any qualified officer of his command as a counsel or as an assistant counsel of a general or special court-martial irrespective of the armed force of which such officer is a member. b. Qualification of counsel of general courts-martial. A person who is appointed as trial counsel or defense counsel of a general court-martial shall be a judge advocate of the Army or the Air Force, or a law specialist of the navy or Coast Guard, who is a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; or shall be a person who is a member of the bar of a Federal court or of the highest court of a State (Art. 27b(1)). In addition to this qualification, a person who is appointed as a trial counsel or defense counsel of a general court-martial shall be certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member (Art. 27b(2)). The term "judge advocate of the Army or the Air Force" as herein used shall be construed to refer to all officers of the Regular Army appointed in the Judge Advocate General's Corps, all non-Regular officers of any component of the Army of the United States on active Federal duty assigned to the Judge Advocate General's Corps by competent orders, and all Regular Air Force officers belonging to that group of judge advocate officers of the United States Air Force constituting a Judge Advocate General's Department or designated judge advocates by appropriate orders, or non-Regular officers of any component of the Air Force of the United States on active Federal duty designated as judge advocates by appropriate orders or assigned to a Judge Advocate General's Department within the Air Force of the United States. The term "law specialist" as herein used shall be construed to refer to an officer of the navy or Coast Guard designated for special duty (law). The order appointing a general court-martial will expressly state the qualification of the trial counsel and the defense counsel as prescribed by Article 27b. See appendix 4 for the form of statement of qualification. A statement that counsel is certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member is sufficient to show that the person so certified is fully qualified by reason of legal training or bar membership as prescribed by Article 27b(1). c. Qualification of counsel of special courts-martial. Any officer not disqualified by reason of prior participation in the same case (6a) may be appointed trial counsel or defense counsel of a special court-martial. But if the trial counsel is qualified to act as counsel before a general court-martial, the defense counsel must be similarly qualified (Art. 27c(1)); and if the trial counsel is a judge advocate, or a law specialist, or a member of the bar of a Federal court or of the highest court of a State, the defense counsel appointed by the convening authority shall be one of the foregoing (Art. 27c(2)). The appointing order will expressly state whether trial counsel and defense counsel are or are not legally qualified lawyers in the sense of Article 27c. See appendix 4 for forms. Proof of the qualification of judge advocates, law specialists (see 6b), and officers certified as qualified by an appropriate Judge Advocate General pursuant to Article 27b(2) is on file in the office of the Judge Advocate General of the armed force of which the officer concerned is a member. The qualifications of other officers as members of the bar of a Federal court or of the highest court of a State (Art. 27c)(2)) will be determined by the convening authority before appointment on the basis of the officer's personnel records or by interrogation of the officer or both. After such determination the officer concerned will report any change in his qualification to the convening authority. The record of trial will show verification of the qualifications recited on the orders. See 61e and f and appendix 8a. d. Qualification of assistant trial counsel and assistant defense counsel. In general it is desirable that as many assistant defense counsel as assistant trial counsel be appointed, and that officers be appointed as assistant defense counsel and assistant trial counsel who have comparable military experience and legal qualifications. If the conduct of the prosecution or the defense in any case before a general court-martial devolves upon an assistant counsel, such assistant counsel must be qualified in the sense of Article 27b (Art. 38d, e). The conduct of the prosecution or defense does not devolve upon an assistant if the trial counsel or defense counsel, as the case may be, is present in court. When the trial counsel or assistant trial counsel conducting the prosecution before a special court-martial is qualified as a lawyer in the sense of Article 27c, the defense counsel or, in his absence, the assistant defense counsel upon whom the conduct of the defense has devolved, must be similarly qualified (Art. 38e). See 61f(2) for procedure as to inquiry into the qualifications of individual counsel for the defense in cases where the accursed does not desire the services of the regularly appointed personnel of the defense. The appointing order for every general or special court-martial will expressly state whether assistant counsel are or are not legally qualified as lawyers in the sense of Article 27. See appendix 4 for form. Whenever appropriate, the qualifications of assistant counsel appointed for special courts-martial shall be determined and shown as prescribed in 6c. 7. APPOINTMENT OF REPORTERS AND INTERPRETERS. Under such regulations as the Secretary of a Department may prescribe, the convening authority of a court-martial or military commission or a court of inquiry shall appoint qualified court reporters who shall record the proceedings of and testimony taken before such court or commission. Under like regulations the convening authority of a court-martial, military commission, or court of inquiry may appoint one or more interpreters who shall interpret for the court or commission (Art. 28). The appointment and employment of reporters and interpreters may be effected by the convening authority personally or through a staff officer (including the trial counsel). The appointment of reporters may be oral and need not be shown in the record of trial or allied papers. Unless otherwise directed by the convening authority, a reporter will not be appointed for summary courts-martial. The convening authority, when he deems it appropriate, may direct that a reporter not be used in special courts-martial. By regulations, the Secretary of a Department may require or restrict the appointment of reporters for summary and special courts-martial. See Article 19. See 114 for oaths and 49 and 50 for duties. See appropriate departmental regulations for compensation and other matters pertinent to the employment of reporters and interpreters. Chapter IV-Jurisdiction of Courts-Martial SOURCES, NATURE, AND REQUISITES-JURISDICTION AS TO PERSONS-JURISDICTON AS TO CONTEMPTS-TERMINATION OF JURISDICTON-EXCLUSIVE AND NONEXCLUSIVE JURISDICTION-RECIPROCAL JURISDICTION-JURISDICTION OF GENERAL COURTS-MARTIAL-JURISDICTION OF SPECIAL COURTS-MARTIAL-JURISDICTION OF SUMMARY COURTS-MARTIAL. 8. SOURCES, NATURE, AND REQUISITES. While courts-martial have no part of the jurisdiction set apart under the article of the Constitution which relates to the judicial power of the United States, they have an equally certain constitutional source. They are established under the constitutional power of Congress to make rules for the government and regulation of the armed forces of the United States, and they are recognized in the provisions of the fifth amendment expressly exempting "cases arising in the land and naval forces" from the requirement as to presentment and indictment by grand jury. The jurisdiction of courts-martial is entirely penal or disciplinary. They have no power to adjudge the payment of damages or to collect private debts (126h). "Courts-martial are lawful tribunals, with authority to determine finally any case over which they have jurisdiction, and their proceedings, when confirmed as provided, are not open to review by the civil tribunals, except for the purpose of ascertaining whether the military court had jurisdiction of the person and subject matter, and whether, though having such jurisdiction, it had exceeded its powers in the sentence pronounced." (Grafton v. United States, 206 U.S. 333, 347-348; see also Hiatt v. Brown, 339 U.S. 103, 110). The appellate review of records of trial provided by the code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed, as required by law, and all dismissals and discharges carried into execution pursuant to sentences by courts-martial following approval, review, or affirmation, as required by law, shall be final and conclusive, and orders publishing the proceedings of courts-martial and all action taken pursuant to such proceedings shall be binding upon all departments, courts, agencies, and officers of the United States, subject only to action under a petition for a new trial as provided in Article 73, and to action by the Secretary of a Department as provided in Article 74, and the authority of the President (Art. 76). Only a Federal court has jurisdiction on writ of habeas corpus to inquire whether a court-martial has jurisdiction of the person and the offense or whether it exceeded its powers in the sentence adjudged. See chapter XXXIX. The jurisdiction of courts-martial does not, in general, depend on where the offense was committed (Art. 5). See, however, Article 134 as to crimes and offenses not capital (213c). Similarly, the jurisdiction of a court-martial with respect to offenses against military law is not affected by the place where the court sits. The jurisdiction of a court-martial-its power to try and determine a case-and hence the validity of each of its judgments, is conditioned upon these indispensable requisites: That the court was appointed by an official empowered to appoint it; that the membership of the court was in accordance with the law with respect to number and competency to sit on the court; and that the court was invested by act of Congress with power to try the person and the offense charged. 9. JURISDICTON AS TO PERSONS. As to persons subject to the code under Article 2 and the act of 3 March 1909 (35 Stat. 748), as amended (24 U.S.C. 20), see Article 2 and notes thereunder in appendix 2. In addition to the persons described in Article 2, certain persons whose status as members of the armed forces or as persons otherwise subject to the code apparently has been terminated may, nevertheless, be amenable to trial by court-martial. See Articles 3, 4, and 73 and the notes thereunder. It is not necessary that an accused by a person subject to the code under Article 2 in order to be amenable to trial by court-martial for a violation of Article 83, 104, or 106. For the jurisdiction of general courts-martial to try persons who by the law of war are triable by military tribunals, see 14. 10. JURISDICTION AS TO CONTEMPTS. A court-martial, provost court, or military commission may punish for contempt any person who uses any menacing words, signs, or gestures in its presence, or who disturbs the proceedings by any riot or disorder (Art. 48). See 118 (Contempts). 11. TERMINATION OF JURISDICTION-a. General rule. The general rule is that court-martial jurisdiction over officers, cadets, midshipmen, warrant officers, enlisted persons, and other persons subject to the code ceases on discharge from the service or other termination of such status and that jurisdiction as to an offense committed during a period of service or status thus terminated is not revived by re-entry into the military service or return into such status. b. Exceptions. To this general rule there are, however some exceptions which include the following: Jurisdiction as to an offense against the code for which a court-martial may adjudge confinement for five years or more committed by a person while in a status in which he was subject to the code and for which he cannot be tried in the courts of the United States or any State or Territory thereof or of the District of Columbia is not terminated by discharge or other termination of such status (Art. 3a). Jurisdiction under Article 3a should not be exercised without the consent of the Secretary of the Department concerned. All persons in the custody of the armed forces serving a sentence imposed by a court-martial remain subject to military jurisdiction (Art. 2(7)). If a person in the military service obtains his discharge from an armed force by fraud, he may be apprehended and tried by court-martial for a violation of Article 83(2). See 162. Upon conviction of said charge, such a person shall be subject to trial by court-martial for any offense under the code committed prior to the fraudulent discharge (Art. 3b). Any person who has deserted from the armed forces shall not be relieved from amenability to the jurisdiction of the code by virtue of a separation from any subsequent period of service regardless of the type of discharge under which such separation was accomplished (Art. 3c). In those cases when the person's discharge or other separation does not interrupt his status as a person belonging to the general category of persons subject to the code, court-martial jurisdiction does not terminate. Thus when an officer holding a commission in a Reserve component of an armed force is discharged from that commission, while on active duty, by reason of his acceptance of a commission in a Regular component of that armed force, there being no interval between the periods of service under the respective commissions, there is no termination of the officer's military status-merely the accomplishment of a change in his status from that of a temporary to that of a permanent officer-and court-martial jurisdiction to try him for an offense committed prior to such discharge is not terminated by the discharge. Similarly, when an enlisted person is discharged for the convenience of the Government in order to re-enlist before the expiration of his prior period of service, military jurisdiction continues provided there is no hiatus between the two enlistments. A member of the armed forces who receives a discharge therefrom while serving without the continental limits of the United States and without the Territories enumerated in Article 2(11), and who immediately becomes a person accompanying, serving, or employed by the armed forces in such an oversea area, remains amenable to trial by court-martial for offenses committed prior to his discharge because such discharge does not interrupt his status as a person subject to the code. So also a dishonorably discharged prisoner in the custody of an armed force may be tried for an offense committed while a member of the armed forces and prior to the execution of his dishonorable discharge. c. Effect of voluntary absence from trial. The accused's voluntary and unauthorized absence after the trial has been commenced in his presence by arraignment does not terminate the jurisdiction of the court which may proceed with the trial to findings and sentence notwithstanding his absence. In such a case the accused, by his wrongful act, forfeits his right of confrontation. d. Effect of termination of term of service. Jurisdiction having attached by commencement of action with a view to trial-as by apprehension, arrest, confinement, or filing of charges-continues for all purposes of trial, sentence, and punishment. If action is initiated with a view to trial because of an offense committed by an individual prior to his official discharge-even though the term of enlistment may have expired-he may be retained in the service for trial to be held after his period of service would otherwise have expired. See Article 2(1). 12. EXCLUSIVE AND NONEXCLUSIVE JURISDICTION. Courts-martial have exclusive jurisdiction of purely military offenses. But a person subject to the code is, as a rule, subject to the law applicable to persons generally, and if any an act or omission he violates the code and the local criminal law, the act or omission may be made the basis of a prosecution before a court-martial or before a proper civil tribunal, and in some cases before both. See 68d (Former jeopardy). The jurisdiction which first attaches in any case is, generally, entitled to proceed. Under such regulations as the Secretary of a Department may prescribe, a member of the armed forces accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial (Art. 14a). See 97c and Article 14b as to the effect of such delivery to the civil authorities upon the execution of a sentence of a court-martial. See pertinent departmental regulations made pursuant to Article 14. Under international law, jurisdiction over members of the armed forces of the United States or other sovereign who commit offenses in the territory of a friendly foreign state in which the visiting armed force is by consent quartered or in passage remains in the visiting sovereign. This is an incident of sovereignty which may be waived by the visiting sovereign and is not a right of the individual concerned. The provisions of the code conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts or other military tribunals of concurrent jurisdiction in respect to offenders or offenses that by statute or by the law of war may be tried by such military commissions, provost courts, or other military tribunals (Art. 21). See Articles 104 and 106 for some instances of concurrent jurisdiction. 13. RECIPROCAL JURISDICTION. Each armed force shall have courts-martial jurisdiction over all persons subject to the code. The exercise of jurisdiction by one armed force over personnel of another armed force shall be in accordance with regulations prescribed by the President (Art. 17a). In general, jurisdiction by one armed force over personnel of another should be exercised only when the accused cannot be delivered to the armed force of which he is a member without manifest injury to the service. Subject to this policy, the commander of a joint command or joint task force who has authority to convene general courts-martial may convene courts-martial for the trial of members of another armed force when specifically empowered by the President or the Secretary of Defense to refer such cases for trial by courts-martial. Such a commander may, in his sound discretion, specifically authorize commanding officers of subordinate joint commands or joint task forces who are authorized to convene special and summary courts-martial to convene such courts for the trial of members of other armed forces under such regulations as the superior commander may prescribe. Cases involving two or more accused who are members of different armed forces should not be referred to as courts-martial for a joint or a common trial. As to the composition of a general or special court-martial for the trial of an accused who is a member of another armed force, see 4g. In all cases, departmental review subsequent to that by the officer with authority to convene a general court-martial for the command which held the trial, where such review is required under the provisions of the code, shall be carried out by the armed force of which the accused is a member (Art. 17b). 14. JURISDICTION OF GENERAL COURTS-MARTIAL-a. Persons and offenses. Subject to the regulations prescribed in 13, general courts-martial have power to try any person subject to the code for any offense made punishable by the code. In addition they have power to try any person who by the law of war is subject to trial by military tribunal for any crime or offense against the law of war and for any crime or offense against the law of territory occupied as an incident of war or belligerency whenever the local civil authority is superseded in whole or in part by the military authority of the occupying power. The law of occupied territory includes the local criminal law as adopted or modified by competent authority, and the proclamations, ordinances, regulations, or orders promulgated by competent authority of the occupying power (Art. 18). b. Punishments. Upon a finding of guilty of an offense made punishable by the code, general courts-martial have the power, within certain limitations, to adjudge any punishment not forbidden by the code (Art. 18). Certain punishments are mandatory under the law, for example, those prescribed by Articles 106 and 188(1) and (4): the discretion of courts-martial to adjudge punishments may be limited by the president under Article 56 (125-127); the death penalty can be adjudged only when specifically authorized (Arts. 18, 52b(1)); and certain kinds of punishment are prohibited (Art. 55). When a general court-martial exercised jurisdiction under the law of war it may adjudge any punishment permitted by the law of war (Art. 18). Certain limitations on the discretion of military tribunals to adjudge punishments under the law of war are prescribed in international conventions, some of which are listed in the notes under Article 18 (app. 2). 15. JURISDICTION OF SPECIAL COURTS-MARTIAL-a. Persons and offenses. (1) Subject to the regulations prescribed in 13, special courts-martial have power to try any persons subject to the code for any noncapital offense made punishable by the code, and, under such regulations as are provided in this paragraph, for capital offenses (Art. 19). Although a capital offense for which there is prescribed a mandatory punishment beyond the punitive power of a special court-martial may never be referred to such a court, an officer exercising general court-martial jurisdiction over the command which includes the accused may cause any other capital offense to be referred to a special court-martial for trial. The Secretary of a Department may, by regulations, authorize officers exercising special court-martial jurisdiction to cause capital offenses, except those in violation of Articles 106 and 118(1) and (4), to be tried by special court-martial without first obtaining the consent of the officer exercising general court-martial jurisdiction over the command. (2) An offense is capital within the meaning of Article 19 when the maximum punishment which a general court-martial may adjudge therefore includes the death penalty. Subject to the exceptions noted in the following subparagraph, the offenses denounced in Articles 94, 99, 100, 102, 104, 110a, 118(1) and (4), and 120a are capital at all times; those denounced by Articles 85, 90, 101, 106, and 113 are capital if committed in times of war. (3) Although capital under one of the articles cited, an offense is not capital if the applicable maximum limit of punishment prescribed by the President under Article 56 is less than death (127c); or, in any case in which the death penalty is not mandatory but is authorized by law whenever the authority competent to convene a court-martial for a capital case has directed that the case be treated as not capital pursuant to Article 49 (145a). Upon a rehearing or a new trial a case is not capital if the authorized sentence adjudged at a prior hearing or trial was other than death (Art. 63). However, no offense for which a mandatory punishment is prescribed can be tried by a special court-martial if such punishment is beyond the power of a special court-martial to adjudge. Thus a case of premeditated murder cannot be referred to a special court-martial for trial because the penalty in event of conviction must either be death or imprisonment for life (Art. 118(1)). b. Punishments. Special courts-martial may, under such limitations as the President may prescribe (125-127; Art. 56), adjudge any punishment not forbidden by the code except death, dishonorable discharge, dismissal, confinement in excess of six months, hard labor without confinement in excess of three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for a period exceeding six months. Subject to approval of the sentence by an officer exercising general court-martial jurisdiction (Art. 65b), and subject to appellate review as prescribed by Articles 66, 67, and, when applicable, Article 68, a special court-martial may adjudge a bad conduct discharge in the case of an enlisted person, but a bad conduct discharge shall not be adjudged by a special court-martial unless a complete record of the proceedings and testimony before the court has been made (Art. 19). As to forfeiture of pay, even when a bad conduct discharge is adjudged, a special court-martial is limited by Article 19 to the adjudgment of forfeiture of two-thirds pay per month for six months. As to other limitations see 125 to 127 (Punishments). 16. JURISDICTION OF SUMMARY COURTS-MARTIAL-a. Persons and offenses. Subject to the regulations prescribed in 13, summary courts-martial have the power to try persons subject to the code except officers, warrant officers, cadets, aviation cadets, and midshipmen for any noncapital offense made punishable by the code. No person with respect to whom summary courts-martial have jurisdiction shall be brought to trial before a summary court-martial if he objects thereto unless under the provisions of Article 15 he has been permitted and has elected to refuse punishment under such article (132). If object to trial by summary court-martial is made by an accused who has not been permitted to refuse punishment under Article 15, trial shall be ordered by a special or general court-martial, as may be appropriate (Art. 20). The principles stated in 15a(2) and (3) apply to summary courts-martial. b. Punishments. Summary courts-martial may, under such limitations as the President may prescribe (125-127; Art. 56), adjudge any punishment not forbidden by the code except death, dismissal, dishonorable or bad conduct discharge, confinement in excess of one month, hard labor without confinement in excess of 45 days, restriction to certain specified limits in excess of two months, or forfeiture of pay in excess of two-thirds of one month's pay (Art. 20); but in the case of noncommissioned or petty officers above the fourth enlisted pay grade, summary courts-martial may not adjudge confinement, hard labor without confinement, or reduction except to the next inferior grade. See 126c(2). The maximum amount of confinement and forfeiture of pay (or confinement and detention of pay) may be adjudged together in one sentence. Since confinement and restriction to limits are both forms of deprivation of liberty, only one of those punishments may be adjudged in maximum amount in any one sentence. An apportionment must be made if it is desired to adjudge both forms of punishment-confinement and restrictions to limits-in one and the same sentence. For example, assuming the punishment to be in conformity with other limitations, a summary court-martial might adjudge confinement at hard labor for 15 days (one-half of the authorized confinement), restrictions to limits for 30 days (one-half of the authorized restriction), and forfeiture of two-thirds pay for one month. In such a case, the more severe form of deprivation of liberty is served first, the less severe thereafter. In addition to or in lieu of other punishments, summary courts-martial have the power to adjudge reprimand or admonition. Chapter V-Apprehension and Restraint SCOPE-GENERAL-APPREHENSION-RESTRAINT-ARREST AND CONFINEMENT-DURATION AND TERMINATION-APPREHENSION OF DESERTERS BY CIVILIANS 17. SCOPE. The paragraphs on this subject deal primarily with the apprehension and restraint of persons subject to the code in connection with trial by court-martial, and deal only incidentally or not at all with the apprehension and restraint of such persons for other purposes, with the apprehension and restraint of persons not subject to the code, and with various other matters touching apprehension and restraint such as those concerning confinement on bread and water or diminished rations (125), the effective date of certain sentences (126h(5)), execution of a sentence of confinement (93), resisting apprehension (174a), breaking arrest or escaping from custody or confinement (174b, c, d), releasing a prisoner without authority (175a), unlawful detention of another (176), and confinement as punishment for contempt (118). 18. GENERAL-a. Definitions. Apprehension is the taking into custody of a person (Art. 7a; see 174d). Arrest is the restraint of a person by an order not imposed as punishment for an offense directing him to remain within certain specified limits (Art, 9a). Confinement is the physical restraint of a person (Art. 9a). b. Basic considerations. (1) Any person subject to the code accused of an offense under the code shall be ordered into arrest or confinement as circumstances may require; but when accused only of an offense normally tried by a summary court-martial, such person ordinarily shall not be placed in confinement (Art. 10). The foregoing provision is not mandatory and its exercise rests within the discretion of the person vested with the power to arrest or confine. No restraint need be imposed in cases involving minor offenses. A failure to restrain does not affect the jurisdiction of the court. (2) No member of the armed forces of the United States shall be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces of the United States (Art. 12). If members of the armed forces of the United States are separated from the other categories mentioned, however, they may be confined in the same jails, prisons, or other confinement facilities. (3) Other than restraint administered as prescribed in this subparagraph (18b(3)), forfeiture of pay or allowances due on and after the date of approval of certain sentences, and minor punishments for infractions of discipline while confined, no punishment may be imposed upon an accused as a result of trial by court-martial until the sentence has been approved and ordered executed. No person, while being held awaiting trial or the result of trial, shall be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence, but, during such period, for infractions of discipline, he may be subjected to minor punishment (Art. 13). Minor punishment shall include all punishment authorized by appropriate departmental regulations for violations of the discipline prescribed for the place in which an accused is confined. Prisoners being held for trial or whose sentences have not been approved and ordered executed will be accorded the facilities, accommodations, treatment, and training prescribed in pertinent regulations. Although no forfeiture of pay or allowances may be effective prior to approval of the sentence by the convening authority, when a sentence of court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement not suspended, the forfeiture will apply to pay or allowances becoming due on and after the date the sentence is approved by the convening authority (126h(5); Art. 57a). But see 88e(2)(c) with respect to the suspension or deferment of forfeitures in certain cases. 19. APPREHENSION-a. Who may apprehend. All officers, warrant officers, petty officers, noncommissioned officers, and, when in the execution of their guard or police duties, air police, military police, members of the shore patrol, and such persons as are designated by proper authority to perform guard or police duties, are authorized to apprehend, if necessary, persons subject to the code or subject to trial thereunder upon reasonable belief that an offense has been committed and that the person apprehended committed it. See Article 7b. Petty officers, noncommissioned officers, and enlisted persons performing police duties should apprehend a commissioned or a warrant officer offender only pursuant to specific orders of a commissioned officer, except where such action is necessary to prevent disgrace to the service, the commission of a serious offense, or the escape of one who has committed a serious offense. In all case involving the apprehension of officers and warrant officers by petty officers, noncommissioned officers and enlisted persons performing police duties, the individual effecting the apprehension will, immediately after such apprehension, notify the officer to whom he is responsible or an officer of the air police, military police, or the shore patrol. b. In quarrels, frays, or disorders. All officers, warrant officers, petty officers, and noncommissioned officers shall have authority to quell all quarrels, frays, and disorders among persons subject to the code and to apprehend persons subject to the code who take part in the same (Art. 7c). c. Procedural steps to apprehend. An apprehension is effected by clearly notifying the person to be apprehended that he is thereby taken into custody. The order of apprehension may be either oral or written. (d) Securing custody of alleged offender. There is a clear distinction between the authority to apprehend and the authority to arrest or confine. Any person empowered to apprehend an offender is authorized to secure the custody of an alleged offender until proper authority may be notified, the limitations (21a; Art. 9) on the power to arrest or confine notwithstanding. 20. RESTRAINT-a. Status of person in arrest. As used in this chapter, arrest is moral restraint imposed upon a person by oral or written orders of competent authority limiting the person's personal liberty pending disposition of charges. The restraint imposed is binding upon the person arrested, not by physical force, but by virtue of his moral and legal obligation to obey the order of arrest. He is subject to the restrictions incident to arrest prescribed in applicable regulations. A person in the status of arrest cannot be required to perform his full military duty, and if he is placed-by the authority who placed him in arrest or by superior authority-on duty inconsistent with such status his arrest is thereby terminated. This, however, does not prevent his being required to do ordinary cleaning or policing within the specified limits of his arrest, or to take part in routine training and duties not involving the exercise of command or the bearing of arms. b. Restriction in lieu of arrest. An officer authorized to arrest (21a) may, within his discretion and without imposing arrest, restrict an accused person of his command, or subject to his authority, to specified areas of a military command with the further provision that he will participate in all military duties and activities of his organization while under such restriction. Thus an accused person may be required to remain within a specified area at specified times either because his continued presence pending investigation may be necessary or because it may be considered a wise precaution to restrict him to such an area in order that he may not again be exposed to the temptation of misconduct similar to that for which he is already under charges. Violations of such restrictions are punishable as violations of Article 134, as are breaches of punitive restrictions. c. Confinement prior to trial. As used in this chapter, confinement is physical restraint, imposed by either oral or written orders of competent authority, depriving a person of freedom pending the disposition of charges. Confinement will not be imposed pending trial unless deemed necessary to insure the presence of the accused at the trial or because of the seriousness of the offense charged. d. Procedure for arresting or confining-(1) Preliminary inquiry into offense. No person shall be ordered into arrest or confinement except for probably cause (Art. 9d). No authority shall order a person into arrest or confinement unless he has personal knowledge of the offense or has made inquiry into it. Full inquiry is not required, but the known or reported facts should be sufficient to furnish reasonable grounds for believing that the offense has been committed by the person to be restrained. (2) Procedural steps to arrest. An arrest is imposed by notifying the person to be arrested that he is under arrest and informing him of the limits of his arrest. The order of arrest may be either oral or written. (3) Procedural steps to confine. A person to be confined is placed under guard and taken to the place of confinement. The authority ordering the confinement will cause to be delivered to the provost marshal, commander of the guard, prison officer, or master at arms, a written statement of the name, grade, and organization of the prisoner and of the offense of which he is accused. No provost marshal, commander of the guard, prison officer, or master at arms shall refuse to receive or keep any prisoner committed to his charge by an officer of the armed forces when the committing officer furnishes a statement, signed by him, of the offense charged against the prisoner (Art. 11a). (4) Notification to accused. When any person subject to the code is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him (Art. 10). Concerning the time element between service of charges and trial, see Article 35. See Article 98 concerning unnecessary delay in the disposition of any case. (5) Report required. Every commander of a guard, prison officer, or master at arms to whose charge a prisoner has been committed shall, within 24 hours after such commitment, or, in the case of a commander of the guard or master at arms, as soon as he is relieved from guard report in writing to the commanding officer the name of such person, the offense charged against him, and the name of the person who ordered or authorized the commitment (Art. 11b). e. Unlawful detention. Any person subject to the code who, except as provided by law, apprehends, arrests, or confines any person is subject to trail by court-martial (Art. 97). 21. ARREST AND CONFINEMENT-a. Who may arrest or confine. Persons subject to the provisions of the code or to trial thereunder may be ordered into arrest or confinement as follows: (1) Officer, warrant officer, or civilian. Only a commanding officer to whose authority the individual is subject may order an officer, warrant officer, or civilian into arrest or confinement. The arrest or confinement must be effected by an order, oral or written, delivered in person or by another officer (Art. 9c). The authority to order such persons into arrest or confinement may not be delegated (Art. 9c). For this particular purpose, the term "commanding officer" shall be construed to refer to an officer commanding a post, camp, station, base, auxiliary airfield, Marine barracks, naval or Coast Guard vessel, shipyard, or other place where members of the armed forces are on duty, and the officer commanding or in charge of any other command who, under Article 24, has power to appoint a summary court-martial. (2) Enlisted person. Any officer may order an enlisted person into arrest or confinement. The arrest or confinement must be effected by an order, oral or written, delivered in person or through other persons subject to the code (Art. 9b). A commanding officer may authorize warrant officers to order enlisted persons of his command or subject to his authority into arrest or confinement (Art. 9b). Thus the commanding officer of any command or detachment may delegate to the warrant officers, petty officers, or noncommissioned officers thereof authority to place enlisted persons who are assigned or attached to his command or detachment, or who are temporarily within its jurisdiction, for example, in quarters, camp, base, station, or ship, in arrest or confinement as a means of restraint at the instant when restraint is necessary. b. Authority of trial counsel to restrain. A trial counsel of a court-martial, as such, has no authority to place in arrest or confinement a person about to be tried by the court. These are duties which devolve upon the convening authority or upon the post, station, or base commander, or other proper officer in whose custody or command the accused is at the time. c. Authority of courts-martial to restrain. A court-martial has no control over the nature of the arrest or other status of restraint of a prisoner except as regards his custody in its presence. d. Responsibility for restraint after trial. Upon notification from a trial counsel of the result of a trial (44e(2)), a commanding officer will take prompt and appropriate action with respect to the restraint of the person tried. Such action, depending on the circumstances, may involve the immediate release of the person from any restraint, or the imposition of any necessary restraint pending final action on the case. 22. DURATION AND TERMINATION. Although charges should be preferred promptly (25; Arts. 10, 30b, 33), the accused is not automatically released from restraint because of any delay in preferring the charges. He must remain in arrest or confinement until released by proper authority. The proper authority to release the accused from arrest is normally the officer who imposed the arrest. The proper authority to release from confinement in a military confinement facility is the commanding officer to whose command such facility is subject. Once a prisoner is placed in confinement he passes beyond the control and power of release of the officer who initially ordered him confined, unless such officer is the commanding officer described above. The release of a prisoner without proper authority is a punishable offense (Art. 96). Undue delay in preferring or prosecuting charges should be investigated with a view to prompt disposition of the case or, when appropriate, the release of the accused from arrest or confinement by competent authority. Any person subject to the code who is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under the code is subject to trial by court-martial (Art. 98). 23. APPREHENSION OF DESERTERS BY CIVILIANS-a. Civil officers. Any civil officer having authority to apprehend offenders under the laws of the United States or of any State, District, Territory, or possession of the United States may apprehend summarily a deserter from the armed forces of the United States and deliver him into the custody of the armed forces of the United States (Art. 8). The right of the United States to apprehend and bring to trial a deserter is paramount to any right of control over him by a parent on the ground of his minority. b. Civilians generally. A private citizen has no authority, as such, without the order or direction of a military officer, to apprehend or restrain a deserter from the armed forces (Kurtz v. Moffit, 115 U.S. 487), but sending out a description of a deserter with a request for his apprehension and the offer of a reward for his apprehension or delivery, coupled with the provisions of law and regulations authorizing the payment of such reward, is sufficient authority for the apprehension of a deserter by a private citizen. The fact that the person who apprehended and delivered a deserter was not authorized to do so is not a legal ground for the discharge of the deserter from military custody. c. Delivery to and return of offenders from civil authorities. See Article 14 and appropriate departmental regulations. Chapter VI-Preparation of Charges DEFINITIONS-WHEN PREFERRED-GENERAL RULES AND SUGGESTIONS-DRAFTING OF CHARGES-DRAFTING OF SPECIFICATAIONS 24. DEFINITIONS-a. Charges and specifications. The formal written accusation in court-martial practice consists of two parts, the technical charge and the specification. For offenses in violation of the code, the charge merely indicates the article the accused is alleged to have violated, while the specification sets forth the specific facts and circumstances relied upon as constituting the violation. Each specification, together with the charge under which it is placed, constitutes a separate accusation. The term "charges," or "charges and specifications," is applied to the formal written accusation or accusations against the accused. See Article 30. b. Additional charges. New and separate charges preferred after others have been preferred are known in military law as "additional charges." They may relate to transactions not known at the time or to offenses committed after the original charges were preferred. Charges of this character do not require a separate trial, and, subject to the completion of the preliminary procedure necessary for all charges, may be tried with the original ones. 25. WHEN PREFERRED. When any person subject to the code is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused (32f(1)) and to try him or to dismiss the charges and release him (Art. 10). Any person subject to the code who is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under the code shall be punished as a court-martial may direct (Art. 98). When it is intended to prefer charges, they should be preferred without unnecessary delay. An accumulation or saving up of charges through improper motives is prohibited; but when a good reason exists (as when a person is permitted to continue a course of conduct so that a ringleader or other conspirators may also be discovered, or when a suspected counterfeiter goes uncharged until his guilty knowledge becomes apparent), a reasonable delay is permissible if the person concerned is not in arrest or confinement. Ordinarily, charges for an offense should not be preferred against an individual if, after investigation, the only available evidence that the offense was committed is his statement that he committed it. In rare cases, however, it may be advisable to prefer charges prior to the completion of an investigation made pursuant to such a statement, as, for example, when the statute of limitations may run before all contemplated witnesses can be interrogated. 26. GENERAL RULES AND SUGGESTIONS-a. Elements of the offense. Before drafting charges and specifications the accuser should analyze the facts and study the pertinent paragraphs of chapter XXVIII, in which appear the elements of proof of various offenses, and appendix 6, in which the forms of specifications are set forth. b. Offenses arising out of one transaction. One transaction, or what is substantially one transaction, should not be made the basis for an unreasonable multiplication of charges against one person. A person should not be charged with both disorderly conduct and assault if the disorderly conduct consisted in making the assault, or with both a failure to report for a routine scheduled duty, such as reveille, and with absence without leave if the failure to report occurred during the period for which he is charge with absence without leave. The larceny of several articles should not be alleged in several specifications, one for each article, when the larceny of all of them can properly be alleged in one specification (200a(7). If a person willfully disobeys an order to do a certain thing, and persists in his disobedience when the same order is given by the same or other superior, a multiplication of charges of disobedience should be avoided (169b). There are times, however, when sufficient doubt as to the facts or the law exists to warrant making one transaction the basis for charging two or more offenses. See 74b(4) and 76a(8). c. Joining minor and serious offense. Ordinarily, charges for minor derelictions should not be joined with charges for serious offenses. For example, a charge of failure to report for a routine roll call should not be joined with a charge of burglary. If, however, the minor offense serves to explain the circumstances of the greater offense, it is permissible to charge both. d. Joint offenses. A joint offense is one committed by two or more persons acting together in pursuance of a common intent. See 156 for a discussion of principals and 157 for a discussion of accessories after the fact. Principals may be charged jointly with the commission of the same offense, but an accessory after the fact cannot be charged jointly with the principal he is alleged to have received, comforted, or assisted. Offenders are properly joined only if there is a common unlawful design or purpose; the mere fact that several persons happen to have committed the same types of offenses at the time, although material as tending to show concert of purpose, does not necessarily establish it. The fact that several persons happen to have absented themselves without leave at about the same time will not, in the absence of evidence indicating a conspiracy, justify joining them in one specification, for they may merely have been availing themselves of the same opportunity of leaving. In joint offenses the participants may be separately or jointly charged. However, if the participants are members of different armed forces, they should be charged separately. See 13. The preparation of joint charges is discussed in detail in appendix 6a(8). The advantage of a joint charge is that all the accused will be tried at one trial, thereby saving time, labor, and expense. This must be weighed against the possible unfairness to the accused which may result if their defenses are inconsistent or antagonistic. See 69d (motion to sever). In drafting charges in such cases, it must also be remembered that an accused cannot be called as a witness for the prosecution without his consent (148e). If, therefore, the testimony of an accomplice is necessary, he should not be tried jointly with those against whom he is expected to testify. 27. DRAFTING OF CHARGES.-The technical charge should be appropriate to all specifications under it, and ordinarily will be written: "Violation of the Uniform Code of Military Justice, Article -----," giving the number of the article. Subparagraphs of the article under which the specification is laid need not be stated. Thus, in alleging murder while engaged in the perpetration of a robbery, "Article 118" is alleged in the charge, not "Article 118(4)." When an offense is specifically defined in a particular punitive article, it ordinarily should be charged under that article rather than under Article 134, the general article. Neither the designation of a wrong article nor the failure to designate any article is ordinarily material, provided the specification alleges an offense of which courts-martial have jurisdiction. For example, if an offense is alleged for which a mandatory punishment is prescribed by a particular article, such as premeditated murder (Art. 188), the mandatory punishment prescribed by the correct article must be adjudged-regardless of whether the offense has been laid under another article. See 74c. For other instructions see appendix 6a. 28. DRQAFTING OF SPECIFICATIONS-a. Contents of specifications. The specification should include the following: (1) The name of the accused and a showing, either by a description by rank and organization or otherwise, that he is within court-martial jurisdiction as to persons. For rules as to the manner of describing the accused, see the instructions in appendix 6a. The service number of the accused should not appear in the specification. (2) A statement of where and when the offense was committed. Examples of the correct form for alleging place and time appear in appendix 6a. (3) A statement in simple and concise language of the facts constituting the offense. The facts so stated will include all the elements of the offense sought to be charged. A specification must exclude every reasonable hypothesis of innocence. See 87a(2). Any intent, or state of mind such as guilty knowledge, expressly made an essential element of an offense should be alleged; thus the offense of delivering less than is called for by receipt in violation of Article 132 should be alleged as "knowingly" done. If the alleged act of the accused is not in itself an offense, but is made an offense by applicable statute (including Articles 133 and 134), regulations, or custom having the effect of law (213a), words importing criminality such as "wrongfully," "unlawfully," "without authority," or "dishonorably," depending upon the nature of the particular offense involved, should be used to describe the accused's acts. In this connection, see 28c. However, if the alleged act of the accused would not under any circumstances be an offense, the mere addition to the specification of words importing criminality will not in itself convert the act into an offense. To a reasonable extent matters of aggravation may be recited. If applicable, the wording of the appropriate punitive article or other statute should be used in preference to a supposedly equivalent expression. For example, in charging a person with being found drunk on duty, the specification should not allege that he was found intoxicated on duty. b. Each specification to allege but one offense. One specification should not allege more than one offense either conjunctively or in the alternative. Thus a specification should not allege that the accused "lost and destroyed" or that he "lost or destroyed" certain property. However if two acts or a series of acts constitute one offense, they may, of course, be alleged conjunctively. c. Alleging written instruments; orders; directives. When a written instrument (e.g., counterfeit money, a forged document, a threatening letter, etc), or a part thereof, forms the gist of an offense, the specification should set forth the writing, preferably verbatim, and the act or acts which constitute the offense. When the offense alleged constitutes a violation of an official directive of the Department of Defense or one of the Departments, or one of their agencies, bureaus, branches, forces, commands or units, the specification should contain sufficient information to indicate what specific directive, or part thereof, the accused is alleged to have violated, and the act or acts which constitute the alleged violation. In this connection, see 147a and 171. However, omission, or an error in the citation, of the directive does not constitute fatal error if the omission or error does not mislead the accused to his prejudice. Oral statements should be set out as nearly as possible in exact words, but should always be qualified by the words "or words to that effect," or some similar expression. d. Specimen forms. Specimen charges and forms for specifications covering the more usual offenses are in appendix 6. These prescribed forms should always be used when they are applicable or when they can be adapted to the offense which is to be alleged. Chapter VII-Submission of and Action Upon Charges INITIATING AND PREFERRING CHARGES-BASIC CONSIDERATYIONS-ACTION BY PERSON HAVING KNOWLEDGE OF A SUSPECTED OFFENSE-ACTION BY COMMANDER EXERCISING IMMEDIATE JURISDICTION UNDER ARTICLE 15-ACTION BY OFFICER EXERCISING SUMMARY COURT-MARTIAL JURISDICTION-INVESTIGATION OF CHARGES-ACTION BY OFFICER EXERCISING GENERAL COURT-MARTIAL JURISDICTION 19. INITIATING AND PREFERRING CHARGES-a. Who may initiate. Charges are initiated by someone brining to the attention of the military authorities information concerning an offense suspected to have been committed by a person subject to the code. Such information may, of course, be received from anyone, whether subject to the code or not. b. Who may prefer. Any person subject to the code may prefer charges, even though he be under charges, in arrest, or in confinement. In the great majority of cases, charges are actually preferred by the commander who exercises immediate jurisdiction over the accused under Article 15. However, when such a commander is also empowered to convene courts-martial and has only an official interest in the disposition of the case, it is customary for him to direct an officer of his command to make a preliminary inquiry into the suspected offense and to prefer appropriate charges if the facts shown by such inquiry should warrant the preferring of charges. See 5a(3) and (4), 33a, and Article 1(11). c. Ordering preferment. A person subject to the code cannot be ordered to prefer charges to which he is unable truthfully to make the required oath on his own responsibility. d. Preparation of charge sheet. See chapter VI for instructions as to the preparation of charges and specifications. Available data as to service, witnesses, and similar items required to complete the first page of the charge sheet will be included. Ordinarily, the charge sheet will be forwarded in triplicate, and all copies will be signed. If several accused are charged on one charge sheet with the commission of a joint offense (26d; app. 6a(8), the complete personal data as to each accused will be set forth on page 1 of the charge sheet or upon an attached copy of that page. One additional signed copy of the charge sheet will be prepared for each accused in excess of one. e. Signing and swearing to charges. Charges and specifications shall be signed under oath before an officer of the armed forces authorized to administer oaths. For example, they may not be sworn to before a warrant officer who is not commissioned although, if such a warrant officer were an adjutant, he would have general authority to administer oaths for other purposes. See 113 and Articles 1(5), 30, and 136. the form of oath is prescribed in 114 and is set forth on the charge sheet (app. 5). In no case may an accused be tried on unsworn charges over his objection. 30. BASIC CONSIDERATIONS. The following basic considerations apply to any action upon a charge or with respect to a suspected offense: a. No person subject to the code shall interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him-whether oral or written-may be used as evidence against him in a trial by court-martial. See Article 31b. b. No charge shall be referred to a general court-martial for trail until the formal investigation required by Article 32 has been made (34). c. No charge shall be referred to a general court-martial for trial until it has been referred for consideration and advice to the staff judge advocate or legal officer of the convening authority (35b; Art 34a). d. No charge shall be referred for trial if the convening authority is satisfied the accused is insane or was insane at the time of the offense charged. (121). e. When it appears to any accuser, or to any investigating officer or commander to whom sworn charges are forwarded in a particular case, that a witness then available may not be so available at a subsequent stage of the proceedings or that, because of distance or other reasons, the disposition of the case may be delayed pending the taking of depositions, he will promptly make the matter known to the officer competent to convene a court-martial for the trial of the offense charged so that depositions may be taken in accordance with the provisions of Article 49. See 5 and 117. The preferring of charges and the taking of depositions in accordance with the provisions of Article 49 is of particular importance in preserving the testimony of witnesses in a case involving an offense committed by an accused who is absent without authority. Unless otherwise directed, the charges and allied papers in such a case will be held with the service record of the accused pending his return to military control. f. Subject to jurisdictional limitations, charges against an accused, if tried at all, should be tried at a single trial by the lowest court that has power to adjudge an appropriate and adequate punishment. See 33h and l. g. Immediately upon receipt of charges or of information as to a suspected offense, the proper authority shall determine the type of restraint, if any, that is to be imposed on the accused pending trial or other disposition of the case. See 18b, 20, 22, and Article 10. h. Upon the receipt of charges or of information as to a suspected offense, the proper authority-ordinarily the immediate commanding officer of the accused-shall take prompt action to determine what disposition should be made thereof in the interests of justice and discipline. See Articles 30 and 98. When a person is held for trial by a general court-martial, the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction; otherwise, he shall report in writing to such officer the reasons for delay (Art. 33). 31. ACTION BY PERSON HAVING KOWLEDGE OF A SUSPECTED OFFENSE. When any person has knowledge of an offense committed by a person subject to the code, it is customary to report the facts to the commander exercising immediate jurisdiction over the accused under Article 15 to permit that commander to take the action outlined in 32. If charges are preferred by someone other than the commander who exercises immediate jurisdiction under Article 15, they should be forwarded to that commander to permit him to take the action outlined in 32. In preferring such charges, the accuser will be guided by the provisions of 29 and 30. Unless competent superior authority has directed otherwise, the accuser will forward the charges (ordinarily through the chain of command) to the commander who exercises immediate jurisdiction over the accused under Article 15, as follows: a. Minor offenses. When it appears to the accuser that the case will be disposed of either under Article 15 or by reference to a summary court-martial, he need not forward the charges by letter of transmittal. However, in such a case, sufficient information about the circumstances, including an informal summary of the expected evidence, should be attached to the charges to enable the commander receiving them to make an intelligent disposition of them without conducting an additional investigation. b. Serious offenses. When charges are submitted which may require trial by special or general court-martial, they will be forwarded by a letter of transmittal containing an explanation of any unusual features of the case. The letter of transmittal will also include or carry as an inclosure a summary of the evidence expected from each witness or other source. The signature of each witness to the summary of his testimony will be obtained unless the procurement of the signature will unduly delay the forwarding of the charges. All reasonably available documentary evidence (originals or admissible copies) will be forwarded with the charges unless, on account of the bulk of such evidence or for other good reason, it is inadvisable to do so. Any articles, weapons, or bulky items which may be useful as exhibits should be properly marked for later identification, preserved, and referred to in the charge sheet or letter of transmittal with a statement as to where they may be found. c. Exceptional cases. In exceptional cases in which the accused is not, strictly speaking, under the command of any military authority inferior to a particular Department, the general principles of this paragraph (31) are applicable; but the charges may, according to the particular circumstances, be forwarded either to the appropriate Department of to the commander of the area command in which the accused may be. In this connection, see the first exception in 11. 32. ACTION BY COMMANDER EXERCISING IMMEDIATE JURISDICTION UNDER ARTICLE 15. Upon the receipt of charges or information indicating that a member of his command has committed an offense punishable by the code, the commander exercising immediate jurisdiction over the accused under Article 15 ordinarily will-subject to the basic considerations stated in 30-dispose of the case in the following manner: a. Exception. See 33a for the action to be taken when the commander exercising immediate jurisdiction over the accused under Article 15 is also empowered to convene courts-martial. b. Preliminary inquiry. He will make, or cause to be made, a preliminary inquiry into the charges or the suspected offenses sufficient to enable him to make an intelligent disposition of them. This inquiry is usually informal. It may be conducted by the commander or by a member of his command. It may consist only of an examination of the charges and the summary of expected evidence which accompanies them; in other cases it may involve the interview of witnesses, the search of barracks, quarters, or other places, or the collection of documentary evidence. With respect to searches, see 152. See 32f for the information which must accompany charges if they are forwarded with a recommendation for trial. It is not the function of the person making the inquiry merely to prepare a case against the accused. He should collect and examine all evidence that is essential to a determination of the guilt or innocence of the accused, as well as evidence in mitigation or extenuation. c. Preferring charges. When charges have not already been preferred and the preliminary inquiry shows that offenses punishable by the code have been committed by a member of his command, he may prefer appropriate charges for those offenses which he believes cannot properly be disposed of under Article 15. See 29 for instructions as to the manner of preferring charges. If charges have already been preferred, but they are not formally correct or do not conform to the expected evidence, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence may be made (33d; Art. 34b). When the preliminary inquiry shows that additional or different offenses have been committed (24b), the immediate commander may prefer appropriate new charges for those offenses which he believes cannot properly be disposed of under Article 15. In such a case, he should consolidate all charges against the accused into one set of charges. d. Dismissal of charges. He may decide, as a result of the preliminary inquiry, that all or some of the charges do not warrant further action because they are trivial, do not state offenses, are unsupported by available evidence, or because there are other sound reasons for not punishing the accused with respect to the acts alleged. Likewise, as to suspected offenses for which charges have not been preferred, he may determine that charges should not be preferred. If so, he need not prefer charges. Unless competent superior authority has directed otherwise, he may dismiss all or part of any charges that have been preferred. With respect to offenses for which charges have been preferred, specifications and charges thus disposed of will be lined out and initialed. If all offenses charged are dismissed, he may notify the accuser of the action taken and the reasons therefore. e. Non-judicial punishment. Unless competent superior authority has directed otherwise, he may impose punishment under Article 15 for any minor offense (whether charged or not). See 128 and 131. With respect to offenses for which charges have been preferred, specifications and charges thus disposed of under Article 15 will be lined out and initialed and any remaining charges and specifications renumbered. If he believes punishment under Article 15 is proper in the case of a commissioned offer or warrant officer, he ordinarily should forward the charges and allied papers or the report of preliminary inquiry to the officer exercising immediate summary court-martial jurisdiction with an appropriate recommendation. When reduction to the next inferior grade is considered a proper punishment in a case of a noncommissioned or petty officer, and he is not authorized to impose such punishment, he should forward the charges or report, with his recommendation, to a commander who has such authority under Article 15. In this connection, see 129 and 131b(2). f. Forwarding charges. If trial by court-martial is believed to be appropriate for any remaining offenses, the charges will be forwarded (ordinarily through the chain of command) to the officer exercising summary court-martial jurisdiction over the command of which the accused is a member. In forwarding such charges, the following rules will be observed: (1) Informing accused of charges. Prior to forwarding the charges, the immediate commander will inform the accused of the charges against him (Arts. 10, 30b) and complete and sign the certificate to that effect on page 3 of the charge sheet. See appendix 5. When, because of the unavailability of the accused, it is impracticable to comply with this requirement, a report of the circumstances will be included in the letter forwarding the charges. (2) Notice of refusal to accept punishment under Article 15. The immediate commander will note in the space provided on page 4 of the charge sheet whether the accused has been permitted and has elected to refuse punishment under Article 15 as to any offense charged. See 16a, 132, appendix 5, and Article 20. (3) Minor offenses. When charges are submitted with a view to trial by summary court-martial or action under Article 15, they need not be forwarded by a formal letter of transmittal, but should be accompanied by evidence of admissible previous convictions and sufficient information about the circumstances, including an informal summary of the expected evidence, to enable the commander receiving them to make an intelligent disposition of the case without an additional investigation. The forwarding of charges by the commander exercising immediate jurisdiction over the accused under Article 15, unaccompanied by a formal letter of transmittal, will be considered a recommendation for trail by summary court-martial. 4. Serious offenses. When charges are submitted with a view to trial by special or general court-martial, they will be forwarded by a letter of transmittal signed personally by the forwarding officer. The letter will include, or carry as inclosures, the following: (a) A summary of the evidence expected from each witness or other source. The signature of each witness to the summary of his testimony will be obtained unless the procurement of the signature will unduly delay the forwarding of the charges. (b) All reasonably available documentary evidence and exhibits. If, because of the bulk of such evidence or for other good reason, it is inadvisable to forward it with the letter of transmittal, it should be properly marked, preserved, and referred to in the charges or the letter of transmittal, with a statement as to where it may be found. (c) Evidence of admissible previous convictions by courts-martial (75b(2)) which, in the case of enlisted persons, is usually in the form of an attested copy of the pertinent entries in the accused's service record. See 143b(2) and 144b (Official records). (d) Explanation of any unusual features of the case including such matters as the character of the accused's military service pr8ior to the offense charged and his record prior to entry into the military service, if known. (e) Specific recommendation as to the disposition of the charges. 33. ACTION BY OFFICER EXERCISING SUMMARY COURT-MARTIAL JURISDICTION. Upon the receipt of charges or information indicating that a member of his command has committed an offense punishable by the code, the officer exercising summary court-martial jurisdiction over the accused will-subject to the basic considerations stated in 30-ordinarily dispose of the case in the following manner: a. Preliminary inquiry. When charges have not already been preferred, and the officer exercising summary court-martial jurisdiction is also the commander exercising immediate jurisdiction over the accused under Article 15, he may take the action outlined in 32. However, if the officer exercising summary court-martial jurisdiction becomes an accuser in fact, he renders himself ineligible to exercise whatever powers he may have had to convene a special or general court-martial for the trial of the case. See Articles 22b and 23b. Accordingly, when he has only an official interest in the case (5a(4)), he ordinarily will transmit the available information about the case to an officer of his command "for preliminary inquiry and report, including, if appropriate in the interest of justice and discipline, the preferring of such charges as appear to you to be sustained by the expected evidence." Unless otherwise directed, the officer to whom such a case is transmitted will make a preliminary inquiry similar to that described n 32b. If the officer making the inquiry forwards his report without preferring charges, the officer exercising summary court-martial jurisdiction will take the action outlined in 32; if the officer making the inquiry prefers charges, the officer exercising summary court-martial jurisdiction will dispose of them in accordance with the rules prescribed in the remaining subparagraphs of this paragraph (33). b. Date of receipt. Immediately upon the receipt of sworn charges against a member of his command, the officer exercising summary court-martial jurisdiction will cause the hour and date of receipt to be entered in the space provided on page 3 of the charge sheet (app.5). This date is important as it fixes the end of the period of time which is to be c0onsidered in determining whether the prosecution of the accused is barred by the statute of limitations. See Article 43b and c. c. Informing accused of charges. If, when charges are received by the officer exercising summary court-martial jurisdiction, it appears that the accused has not been advised of the charges against him, the action prescribed in 32f(1) will be taken promptly. d. Alterations. The officer exercising summary court-martial jurisdiction will make a preliminary examination of the charges and the allied papers to determine whether the specifications are laid under the proper punitive articles and are supported by the expected evidence. Charges forwarded or referred for trial and the accompanying papers should be free from defect of form and substance, but delays incident to the return of papers to the accuser for correction of defects which are not substantial will be avoided. Obvious errors may be corrected and the charges may be redrafted over the accuser's signature, provided the redraft does not include any person, offense, or matter not fairly included in the charges as preferred. Corrections and redrafts should be initialed by the officer making them. If a change involves the inclusion of any person, offense, or matter not fairly included in the charges as preferred, new charges, consolidating all offenses which are to be charged, should be signed and sworn to by an accuser. See Article 34b. e. Investigations. When the offenses are so serious that it may be appropriate to forward them with a recommendation for trial by general court-martial, he will appoint an officer to investigate the charges in accordance with 34 and Article 32, subject to the following exceptions: (1) Effect of investigation of subject matter before charges preferred. If an investigation of the subject matter of an offense was conducted prior to the time the accused was charged with the offense (e.g., court of inquiry), and if the accused was present at the investigation of that charge and was afforded the rights set forth in Article 32b, no further investigation of that charge is necessary unless it is demanded by the accused after he is informed of the charge. A demand for further investigation in such a case entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in his own behalf. See Article 32c. (2) Effect of changing charges after investigation is made. If the charges were investigated pursuant to 34 and Article 32b before reaching the officer exercising summary court martial jurisdiction, he need not direct another investigation unless there is reason to believe that a further investigation would aid in the administration of military justice. In any event, supplementary investigations by the same or a different investigating officer may be directed. If, at any time after an investigation under Article 32b has been conducted, the charges are changed to allege a more serious or essentially different offense, a new investigation should be directed to give the accused an opportunity to exercise the privileges afforded him by 34 and Article 32b with respect to the new or different matters alleged. In this connection, see 33d. f. Dismissal of charges. He has the same authority as the commander exercising immediate jurisdiction over the accused under Article 15 with respect to dismissal of all or part of the charges. In this connection, see 32d. If the officer exercising summary court-martial jurisdiction finds that trial of a particular case would be warranted except for the fact that it would probably be detrimental to the prosecution of a war or inimical to the national security, he will, without dismissing any charges that may have been preferred, forward the case to the office exercising general court-martial jurisdiction over the command who, if he concurs in such finding, will forward the case through the chain of command to the Secretary of the appropriate Department. In this connection, see Article 43e. Any officer exercising general court-martial jurisdiction who receives the charges in such a case is authorized to determine whether trial of the accused is warranted under the circumstances and, if so, whether the security considerations involved are paramount to trial. In an appropriate case, such a commander may, instead of forwarding the charges, dismiss them or authorize their trial. g. Non-judicial punishment. He has the same authority as the commander exercising immediate jurisdiction over the accused under Article 15 with respect to the imposition of non-judicial punishment. See 32e, 129, and 131. He may impose such punishment himself or he may direct the immediate commander of the accused to take appropriate action. In the case of warrant officers and officers, he will usually impose such punishment or, if he believes a forfeiture of pay to be appropriate in the interest of justice and discipline, he will forward the charges and allied papers or the report of preliminary inquiry (if charges have not been preferred) to the officer exercising general court-martial jurisdiction with a specific recommendation over his own signature as to the exact punishment he believes should be imposed. h. Disposition of the charges by trial. If he determines that some punishment should be adjudged against the accused, but that punishment under Article 15 is not appropriate or has in a proper case been refused by the accused, he must decide to which kind of court-martial the case should be referred. Subject to jurisdictional limitations, charges against an accused, if tried at all, should be tried at a single trial by the lowest court that has the power to adjudge an appropriate and adequate punishment. See 33l. The fact that, upon conviction of a particular offense, the Table of Maximum Punishments (127c) may authorize a punishment in excess of that which can be adjudged by a summary or special court-martial does not in itself preclude reference of such an offense to a summary or special court-martial for trial. In this connection, see 15a and 16a as to the authority to cause a capital case to be tried by an inferior court-martial. He should take into consideration the character and prior service of the accused, as well as the established policies of superior authority, in deciding upon his action or recommendation. For example, he should not hesitate in a proper case involving offenses of a purely military nature, to dismiss the charges (32d) or refer them to an inferior court-martial for trial. When any offense charged is not of a purely military nature, he should take into account the fact that the retention in the armed forces of thieves and persons guilty of moral turpitude injuriously reflects upon the good name of the military service and its self-respecting personnel. If he determines that the offense is so serious that the accused, if convicted, should be separated from the service by a punitive discharge, he must decide to which court the case should be referred in order that the appropriate kind of discharge-dishonorable or bad conduct-may be adjudged. In this connection, see 76a(6) and (7). Ordinarily a specification as to which the statute of limitations (Art. 453) apparently may be successfully pleaded should not be referred for trial. See 68c. i. Forwarding charges. When trial by a special or general court-martial is deemed appropriate, and he is not empowered to convene such a court for the trial of the case (5a, b), he will forward the charges and necessary allied papers (ordinarily through the chain of command), to the officer exercising the appropriate kind of court-martial jurisdiction. The charges will be forwarded by indorsement or letter of transmittal, signed by the forwarding officer, and containing his recommendation as to their disposition. If the charges are forwarded with a recommendation for trial by general court-martial, the forwarding officer should observe the following rules: (1) He will inclose a copy of the report of investigation made under 34 and Article 32 or will explain why such an investigation was not made prior to forwarding the charges. (2) If an investigation under 34 and Article 32 was made, he will cause a coy of the substance of the testimony taken on both sides during the investigation to be furnished to the accused and will report that fact in his indorsement or letter of transmittal. (3) He will note in the indorsement or letter of transmittal whether any material witnesses may not be available at the time of the trial and the action that has been initiated to have such witnesses or their depositions available at the trial. See chapter XXIII and Article 49. j. Reference for trial-(1) Manner of reference. Charges are ordinarily referred to a court-martial for trial by means of the indorsement on page 3 of the charge sheet (app.5). Although the indorsement is usually completed on all copies of the charge sheet, only the original need be signed. The indorsement may include any proper instructions; for instance, a direction that the charges be tried with certain other charges against the accused (24b), or in a common trial with other persons (33l), or that a capital case be treated as not capital (15a(3); Art. 49f). If for any proper reason it is desired to refer charges to a court different than that to which they were originally referred, the new reference is customarily accomplished by means of a new indorsement affixed to the charge sheet. In such a case, the original indorsement is lined out and initialed. (2) Special court-martial. The officer exercising summary court-martial jurisdiction (5c; Art 24) is often also empowered to convene special courts-martial (5b; Art. 23). If he is so empowered and determines that trial by special court-martial is appropriate, he should complete the indorsement in the prescribed manner and transmit the charges and allied papers (ordinarily in duplicate, but with one additional copy of the charges for each accused in excess of one) to the trial counsel of the court. (3) Summary court-martial. If he determines that trial by summary court-martial is appropriate, he should complete the indorsement in the prescribed manner and transmit the charges (ordinarily in triplicate) to the summary court-martial. If the only officer present with a command decides to try the charges as summary court-martial, no indorsement is required. k. Reporters in trials by special courts-martial. When the convening authority is authorized to direct that a reporter not be appointed for trials by special courts-martial, he may, in an appropriate case, include in the indorsement referring the charges for trial the direction, "Reporter not authorized." In this connection see 7. l. Common trial. If two or more persons are charged with the commission of an offense or offenses which, although not jointly committed (26d), were committed at the same time and place and are provable by the same evidence, the convening authority may in his discretion direct a common trial for such offenses only. Offenses charged against different accused which are not closely related should not be tried in a common trial, notwithstanding the fact that some other offenses with which each accused is charged may be closely related. See 69d (Motion to sever). For example, when A and B are each charged with larcenies alleged to have been committed at the same time and place, and B is also charged with an aggravated assault alleged to have been committed several days later, the assault specification against B should not be tried in a common trial, although the charges of larceny may properly be tried at such a trial. The convening authority may exercise his discretion in determining the order in which such charges shall be tried. m. Suspected insanity. If he suspects that an accused lacks mental capacity or that he was not mentally responsible at the time of the offense charged, he should initiate an inquiry into the mental condition of the accused as provided in 121. 34. INVESGIATION OF CHARGES-a. Introductory statement. No charge shall be referred to a general court-martial for trial until a thorough and impartial investigation thereof has been made (Art. 32). The officer appointed to make such an investigation should be a mature officer, preferably an officer of the grade of major or lieutenant commander or higher, or one with legal training and experience. Neither the accuser nor any officer who is expected to become the law officer or a member of the prosecution or defense upon possible trial of the case will be designated as investigating officer. In conducting the investigation, the investigating officer will comply with Articles 31 and 32. The purpose of the investigation required by Article 322 is to inquire into the truth of the matters set forth in the charges, the form of the charges, and to secure information upon which to determine what disposition should be made of the case. It is not the function of the investigating officer to perfect a case against the accused, but to ascertain and impartially weigh all available facts in arriving at his conclusions. He is required to conduct a thorough and impartial investigation and is not limited to the examination of witnesses and documentary evidence listed on the charge sheet or mentioned in the papers accompanying the charges. He should extend his investigation as far as may be necessary to make it thorough. The investigation should be dignified and military, as brief as is consistent with thoroughness and fairness, and limited to the issues raised by the charges and to the proper disposition of the case. Any failure to comply substantially with the requirement of Article 32 which results in prejudice to the substantial rights of the accused at the trial-such as a denial of a reasonable opportunity to secure material witnesses for use at the trial or of an opportunity to prepare his defense-may require a delay in disposition of the case or disapproval of the proceedings. See 69c and 87c. Similarly a failure to comply with the provisions of Article 31 may result in a miscarriage of justice. Recommendations of an investigating officer are advisory only. The remainder of this paragraph (34) is intended primarily to indicate a proper procedure in the usual cases. Variations to meet the circumstances of other cases or exceptional or local conditions, or for any other good reasons, are not only permissible but should be adopted, provided the spirit and purpose of the statutory requirements referred to above are observed and carried out. b. Advising the accused. At the outset of the investigation the accused will be informed of the following: The offense charged against him; the name of the accuser and of the witnesses against him as far as then known by the investigating officer; the fact that charges are about to be investigated; his right to have counsel represent him at the investigation if he so desires, as provided in Article 32; his right to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense, extenuation, or mitigation; his right to have the investigating officer examine available witnesses requested by him; his right to make a statement in any form, but that he is not required to make any statement regarding the offense of which he is accused or being investigated, and that any statement he may make may be used as evidence against him in a trial by court-martial. c. Counsel. If the accused requests that he be represented by counsel, the investigating officer will promptly report the request to the officer who referred the charges for investigation. The latter will take the following action: (1) If the accused requests civilian counsel of his own selection, he will give the accused a reasonable opportunity to obtain the civilian counsel without unduly delaying the investigation, but such counsel will not be provided at government expense. (2) If the accused desires military counsel of his own selection, and if the requested military counsel is reasonably available within the command, he will provide such military counsel. If the counsel is not under the command of the officer who referred the charges for investigation, that officer will take prompt action to ascertain the availability of the requested counsel and, if available, to obtain his services without unduly delaying the investigation. (3) If counsel is not provided as indicated in (1) or (2) above, and if the officer who ordered the investigation is the officer exercising general court-martial jurisdiction over the command, he will detail a competent officer to represent the accused as counsel at the investigation; otherwise he will forward the request of the accused directly and expeditiously to the officer exercising general court-martial jurisdiction over the command, who will promptly designate and provide such counsel. It may be appropriate for the officer exercising general court-martial jurisdiction to designate a permanent pretrial counsel to act in all cases arising within a particular area or at a particular station, thus avoiding delay in investigations. For example, the regularly appointed defense counsel and assistant defense counsel of the general court-martial appointed to sit at a particular station may be designated as pretrial counsel. If practicable, charges must be forwarded to the officer exercising general court-martial jurisdiction within eight days after an accused is ordered in to arrest or confinement (Art. 33). The investigation should be conducted promptly, while the events are fresh in the minds of witnesses. An investigation will not be delayed if the accused is unable to provide civilian counsel of his own selection within a reasonable time after having been given an opportunity to obtain such counsel. The principles stated in 42b and 48 apply equally to the counsel at the investigation. Whenever counsel is requested by the accused, the investigation will be conducted in the presence of the counsel unless the accused expressly excuses him. d. Witnesses. All available witnesses, including those requested by the accused, who appear to be reasonable necessary for a thorough and impartial investigation will be called and examined in the presence of the accused, and if counsel has been requested, in the presence of the accused and his counsel. Ordinarily, application for the attendance of any witness subject to military law will be made to the immediate commanding officer of the witness. The decision of the officer exercising summary court-martial jurisdiction over the command to which the witness belongs is final as to availability. There is no provision for paying compensation to any witness who gives evidence at the pretrial investigation. There is no provision for compelling the attendance of witnesses not subject to military jurisdiction. Witnesses who give evidence during the investigation should be examined on oath or affirmation and, unless procurement of their signatures will cause undue delay in the completion of the investigation, they should sign and swear to the truth of the substance of their statements after they have been reduced to writing. If the accused elects to make a statement, he shall have the option of making it under oath or affirmation or of making an unsworn statement; he should be afforded the opportunity of signing and swearing to the truth of the substance of his statement after it has been reduced to writing. See 114 for forms of oaths. If material witnesses on behalf of the accused or the prosecution are not reasonably available, and if it appears that they may not be available at the time of trial, the investigating officer should initiate action with a view toward obtaining necessary depositions. See 30e, 117, and Article 49. When the investigating officer makes known to the accused the substance of the testimony expected from a witness as ascertained from a written statement of the witness interview with the witness, or other similar means, and the accused states that he does not desire to cross-examine the witness, the witness need not be called even if available. When a witness requested by the accused is available, the witness need not be called if the accused withdraws his request upon being informed that the testimony expected by the accused from the witness will be regarded as having been actually taken. To the extent required by fairness to the Government and the accused, documentary evidence and statements of witnesses who are not available will be shown, or the substance thereof will be made known, to the accused and, if counsel has been requested, to his counsel. e. Formal report. Whenever it appears that the case may be disposed of by reference to a general court-martial for trial, a formal report of investigation will be made to the officer who directed it. In this connection, see 34f. Such a report ordinarily will be made in triplicate, but one additional copy will be made for each accused in excess of one. For a form of report, see appendix 7. Although previously prepared forms may be used, special care should be exercised to insure that the use of forms of report of investigation does not result in perfunctory or inaccurate certifications of compliance with the requirements of this paragraph (34). Unless otherwise indicated by him, the submission of his report by an investigating officer will be regarded as a statement that to the best of his knowledge and belief the investigation of the matters set forth in the charges was made in substantial conformance with all requirements, the matters set forth in the charges as to which he recommends trial are true, and such charges are in proper form. A formal report by indorsement or letter will include or carry as inclosures or by reference to other papers returned or submitted by him with the report: (1) A statement of the name, organization, or address of counsel and information as to the presence or absence of counsel throughout the proceedings in all cases in which counsel has been requested by the accused. (2) A statement of the substance of the testimony taken on both sides, including any stipulated testimony (e.g., when an accused withdraws a request for a witness upon being told that the testimony expected would be regarded as taken). One additional copy of the statement of the substance of the testimony taken will be prepared for each accused to enable the officer exercising summary court-martial jurisdiction to furnish each accused with a copy if the charges are forwarded to the officer exercising general court-martial jurisdiction. See 33i(21) and Article 32b. (3) Any other statements, documents, or matters considered by him in reaching his conclusions or making his recommendations, or recitals of the substance or nature of such items. (4) A statement of any reasonable ground for the belief that the accused is, or was at the time of an offense, mentally defective, deranged, or abnormal. (5) A statement as to whether essential witnesses will be available in the event of trial. If essential witnesses will not be available, the reasons for nonavailability will be stated. (6) The recommendation of the investigating officer as to what disposition should be made of the case. f. Informal report. Unless competent superior authority has directed otherwise, if it does not appear that the case will be disposed of by reference for trial by general court-martial, an informal report to the officer who directed the investigation will be made orally or by a brief memorandum, indorsement, notations on the charge sheet, or other suitable means. However made, the report need include in abbreviated form only the first, second, fourth, and sixth items of the formal report, but the sources of any material evidence for either side which were not shown in the papers received by the investigating officer should be reported. 35. ACTION BY OFFICER EXERCISING GENERAL COURT-MARTIAL JURISDICTION-a. General. The charges received by the officer exercising general court-martial jurisdiction ordinarily will have been investigated under the provisions of 34 and Article 32, and will have been examined and forwarded with an appropriate recommendation by an officer exercising summary court-martial jurisdiction. The charges and allied papers usually will be in triplicate, with one additional copy for each accused in excess of one. With respect to the disposition of charges received by him, he is empowered, as the officer exercising general court-martial jurisdiction, to refer them for trial to a general court-martial convened by him, to authorize the trial of certain capital offenses by inferior courts-martial, or, in lieu of trial, to impose forfeitures of pay in appropriate cases upon officers and warrant officers of his command under the provisions of Article 15. In addition to these powers-none of which may be delegated-he may take any action on the charges which the immediate commander (32) or the officer exercising summary court-martial jurisdiction (33) is authorized to take. He may take this latter action himself or he may return the charges and allied papers to a proper subordinate commander with the instruction that appropriate action be taken by him. b. Reference to staff judge advocate or legal officer. Before directing the trial of any charge by general court-martial, the convening authority shall refer it to his staff judge advocate or legal officer for consideration and advice. The convening authority shall not refer a charge to a general court-martial for trial unless he has found that the charge alleges an offense under the code and is warranted by evidence indicated in the report of investigation (Art. 34a). Subject to the provisions of this paragraph (35), reference to a staff judge advocate or legal officer will be made and his advice submitted in such manner and form as the convening authority may direct, but the convening authority shall at all times communicate directly and personally with his staff judge advocate or legal officer in matters relating to the administration of military justice. See Article 6b. No person who has acted as investigating officer, law officer, or member of the court, prosecution, or defense in any case shall subsequently act as staff judge advocate or legal officer in the same case. See Article 6c. c. Action of the staff judge advocate or legal officer. The advice of the staff judge advocate or legal officer shall include a written and signed statement as to his findings with respect to whether there has been substantial compliance with the provisions of Article 32, whether each specification alleges an offense under the code, and whether the allegation of each offense is warranted by the evidence indicated in the report of investigation; it shall also include a signed recommendation of the action to be taken by the convening authority. Such recommendation will accompany the charges if they are referred for trial. See 44g(1) and h. Chapter VIII-Appointment of Courts-Martial APPOINTING ORDERS-CHANGES IN PERSONNEL-INSTRUCTING PERSONNEL OF COURT 36. APPOINTING ORDERS-a. General. See 4 to 6, inclusive, for various matters relating to the appointment of courts-martial, including the appointment of a law officer, and the appointment of trial counsel, defense counsel, and their assistants. Appointment of personnel to court-martial duty is prima facie evidence that they are on active duty with an armed force. See Article 25. b. Form and content. A court-martial is created by an appointing order issued by the convening authority. The appointing 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. 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 appointing order. If enlisted personnel are appointed as members of the court, the unit (company, squadron, ship's crew, or corresponding body (4a; Art. 25c)) of which each is a member is shown. The appointing 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 appointing 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 4g. If his subordinate commands are separated geographically, the convening authority may appoint 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, appointed to sit at a post, camp, station, or subordinate command at a distance from the officer exercising general court-martial jurisdiction, and the personnel of the court are selected from such 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 appointed. (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 appointed, and, prior to the convening of the court for trial, the accused personally has requested in writing that enlisted persons serve on the court (61g, i; Art. 25c), the convening authority shall: (a) Appoint 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 (37b), it is within the discretion of the convening authority to make changes in the composition of courts-martial appointed by him. For instance, he may appoint new members to a court in lieu of, or in addition to, the members of the original court; or he may appoint a new law officer, trial counsel, or defense counsel in lieu of the personnel designated to perform those respective duties by the original appointing order. When practicable, the convening authority should change the composition of courts-martial from time to time to provide the maximum opportunity to eligible personnel to gain experience in the administration of military justice. b. Exceptions. No member of a general or special court-martial shall 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. 29a). Military exigencies or emergency leave, among others, may constitute good cause for such a relief. 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. Ordinarily, he should not appoint additional members to a general or special court-martial after the arraignment of an accused unless the court is reduced below a quorum; 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) Formal changes. Permanent changes in the composition of a court-martial, such as changes which involve the appointment of new personnel to a court or the relief of a member, are usually accomplished by promulgation of formal written orders amending the original appointing order. If it is necessary to make a formal change by oral order, despatch, or signal, the oral order, dispatch, or signal should be confirmed by written orders. For forms of amending orders, see appendix 4. Amendments of the original appointing order should be kept to a minimum. To avoid making a number of separate changes by the way of amendment, it is better practice to appoint 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 appointing a new court, the old court should not be dissolved, nor the order appointing the old court rescinded or revoked, as it may be necessary to reassemble the old court for revision proceedings. (2) Informal changes. 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 take such action by oral order, dispatch, or signal and need not confirm the action by a written order. See 41c, 44b, and 46b. 38. INSTRUCTING PERSONNEL OF COURT. A convening authority may, through his staff judge advocate or legal officer or otherwise, give general instruction to the personnel of a court-martial which he has appointed, preferably before any cases have been referred to the court for trial. When a staff judge advocate or legal officer is present with the command such instruction should be given through that officer. Such instruction may relate to the rules of evidence, burden of proof, and presumption of innocence, and may include information as to the state of discipline in the command, as to the prevalence of offenses which have impaired efficiency and discipline, and of command measures which have been taken to prevent offenses. Except as provided in this manual, the convening authority may not, however, directly or indirectly give instruction to, or otherwise unlawfully influence, a court as to its future action in a particular case. In this connection, see 67f. Convening authorities are expressly forbidden to censure, reprimand, or admonish a court appointed 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 shall 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. See Articles 37 and 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 appointed. 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) and advises 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 to the elements of each offense charged, the presumption of innocence, reasonable doubt, and burden of proof (73), and may give it such additional instructions as will aid it in arriving at just findings, such as what lesser offenses, if any, are included in the offense charged and the possible findings the court may make by way of exceptions and substitutions. 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 (74f; Art. 39). Before the court closes to vote upon a sentence, he should advice it as to the maximum authorized punishment for each offense of which the accused has been found guilty. (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 and, except when the law officer assists the court in putting its findings in proper order, shall be made or given in open court in the presence of the accused and the counsel for the prosecution and defense. See Article 39. A conference between the law officer and the counsel for either side, or the senior member of the court, held outside of court for the purpose of discussing the time of the commencement or continuation of the trial, need not be made a part of the record. See 58b as to postponement of assembly of the court for a trial. See also 57a(2) for rules governing proceedings had outside the presence of members of a general court-martial with respect to preliminary evidence, offers of proof, and arguments as to the admissibility of proffered evidence, and 73c(2) for rules governing the preparation of additional instructions by the law officer. d. Absence of law officer. The law officer must be present at all times during the trial of a case except when the court is closed to deliberate or vote (Art. 39). When the law officer is absent from any open session of the court during the trial of a case, the court will adjourn until either the law officer is present or a new law officer is regularly appointed and is present. In appropriate cases the court will report the absence of the law officer to the convening authority. If, before trial, it appears to a law officer that he should not sit on the court, either at all or in a particular case, for reasons enumerated in 62f or for other reasons, he will bring the matter to the attention of the convening authority. e. New law officer. The law officer should not be changed during the progress of a trial except for a good reason. If a new law officer is appointed to the court in the course of a trial and is sworn (opportunity to challenge him for cause having been given), the trial may proceed after the substance of all proceedings have been made known to him and the recorded testimony of each witness previously examined has been read to him in the presence of the court, the accused and counsel. However, see 80b for the procedure to be followed when a new law officer is present at revision proceedings. f. Authentication of record. The law officer who was present at the conclusion of the proceedings in a case will authenticate the record of trial. See 82f in this connection. 40. PRESIDENT-a. General. The senior in rank among the members appointed to a general or special court-martial is the president; however, the senior member present at a trial, whether or not he is the senior member appointed to the court, is president of the court for the trial of that case. See 40c. b. Duties-(1) General court-martial. The president of a general court-martial has the duties, powers, and privileges of members in general. He has the following additional powers and duties: (a) After consultation with the trial counsel and, when appropriate, the law officer (58b), he sets the time and place of trial and prescribes the uniform to be worn. (b) As the presiding officer of the court, he takes appropriate action to preserve order in the open sessions of the court in order that the proceedings may be conducted in a dignified, military manner, but, except for his right as a member to object to certain rulings of the law officer (57d, 118), he shall not interfere with those rulings of the law officer which affect the legality of the proceedings. (c) He administers oaths to counsel. (d) For good reason, he may recess or adjourn the court (e.g. 39d), subject to the right of the law officer to rule finally upon a motion or request of counsel that certain proceedings be completed prior to such recess or adjournment, or that a continuance be granted (58). Whether a matter of recess or adjournment has become an interlocutory question will be finally determined by the law officer (57d). (e) He presides over closed sessions of the court and speaks for the court in announcing the findings and sentence and the result of any vote upon a challenge or other interlocutory question properly presented to the court for decision. (f) He speaks for the members of the court in conferring with, or in requesting the advice of, the law officer upon any question of law or procedure. (2) Special court-martial. The president of a special court-martial is responsible for the fair and orderly conduct of the proceedings in accordance with law in all cases referred to the court. In addition to performing the duties prescribed for the president of a general court-martial, he will rule upon all interlocutory questions except challenges, and, before the court closes to vote on the findings, will instruct the court as to the elements of each offense charged, the presumption of innocence, reasonable doubt, and burden of proof (73a, b). His rulings upon interlocutory questions may be objected to by any other member of the court (57c). With respect to the conduct of trials, he will be guided by the principles outlined in 39b(2). c. Authentication of record. The senior member of the court who was present at the conclusion of the proceedings in a case will authenticate the record of trial as president See 82f in this connection. 41. MEMBERS-a. Selection. See 4a to d, inclusive, for qualifications of members of courts-martial. b. Duties. Members of courts-martial hear the evidence, determine the guilt or innocence of the accused and, if the accused is found guilty, adjudge a proper sentence. Each member has an equal voice and vote with other members in deliberating upon and deciding all questions submitted to a vote or ballot, the senior member having no greater rights in such matters than any other member. In this connection, see 57f, 62h(3), 74d, and 76b(2). 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. c. Absence of members. No member of a general of special court-martial may be absent from the court during the trial of a case except for physical disability, as a result of a challenge, or by order of the convening authority. If, before the assembly of the court for the trial of a case, it appears to a member that he should not sit on the court, either at all or in a particular case, for reasons enumerated in 62f or for any other reason except physical disability, he will take appropriate steps to bring the matter to the attention of the convening authority. If he is able to do so, a member of a general or special court-martial who is, or has reason to believe that he will be, absent from a session of the court because of physical disability will so inform the trial counsel. The latter will make an informal inquiry to verify the cause of the absence and, if it occurs after the arraignment of the accused, will report his findings to the court (41d(4). d. Effect of absence-(1) General. When less than a quorum (minimum number of members required by Article 16) is present, the court cannot be organized as such or proceed with a trial. Less than a quorum may adjourn until a prescribed time. When a quorum is present and one member is challenged, the remaining members may pass on the challenge. (2) Enlisted members. When, pursuant to Article 25c, an enlisted person requests participation of enlisted members in his trial by general or special court-martial, the court shall not proceed with his trial unless one-third of the members actually sitting on the court throughout his trial are enlisted members or the convening authority has directed that the trial be held without enlisted persons. See 4c and 36c(2). (3) Before arraignment. The unauthorized absence of a member of a general or special court-martial from a session of the court may be a military offense, but his absence prior to the arraignment of the accused will not prevent the court from proceeding with the trial if a quorum is present. However, the trial counsel will report any unauthorized absence of a member to the convening authority. (4) After arraignment. If a member who was present at the arraignment of the accused is absent from a future session of the court in the same case, the court may proceed only if a quorum remains and the absence is the result of a challenge, physical disability, or the order of the convening authority for good cause. As to the latter, see 37b. In determining whether a member is absent because of physical disability, the court may accept the statement of the trial counsel as to the results of his informal inquiry into the cause of absence (41c) or it may require the trial counsel to procure and present other evidence, such as a certificate from a physician or a proper official as to the illness of the absent member. To determine whether a member is absent by order of the convening authority, the court may accept the statement of the trial counsel that he has been advised by oral order, signal, or dispatch that the member has been excused by the convening authority from further attendance in the case (37c). e. New member of general court-martial. When a member who was previously absent from, or who has been newly appointed to, a general court-martial has been sworn (opportunity to challenge him having been given), the trial may proceed after the substance of all proceedings had shall have been made known to him and the recorded testimony of each witness previously examined has been read to him in the presence of the law officer, the accused, counsel, and the other members of the court. See Article 29b. f. New Member of special court-martial. When a member who was previously absent from, or who has been newly appointed to, a special court-martial has been sworn (opportunity to challenge him having been given), the trial shall proceed as if no evidence had previously been introduced, unless the substance of all proceedings had shall have been made known to him and a verbatim record of the testimony of previously examined witnesses or a stipulation thereof is read to the court in the presence of the accused and counsel. See Article 29c. 42. COUNSEL: GENERAL PROVISIONS-a. Definition of terms. The term "counsel" as used in this manual will be interpreted to include, unless otherwise indicated by the context, the appointed trial counsel and defense counsel of a general or special court-martial and their assistants, if any, and any individual counsel (civilian or military). Whenever the term "trial counsel" is mentioned, it will be understood to refer to the appointed trial counsel of a general or special court-martial and to include, unless otherwise indicated by the context, assistant trial counsel, if any. Whenever the terms "defense counsel" or "counsel for the accused" are used, they are to be understood to include, unless otherwise indicated by the context, the appointed defense counsel, appointed assistant defense counsel, if any, and any individual counsel. The term "individual counsel" shall be understood to refer to military counsel selected by the accused or to civilian counsel provided by him. b. General rules of conduct. In performing their duties before courts-martial, counsel should maintain a courteous and respectful attitude toward the law officer, the members of the court, and opposing counsel, and should treat adverse witnesses and the accused with fairness and due consideration. Personal colloquies between counsel which cause delay or promote unseemly wrangling should be carefully avoided. The conduct of counsel before the court and with each other should be characterized by candor and fairness. Counsel should not knowingly misquote the contents of a paper, the testimony of a witness, the language or argument of opposing counsel, or the language of a decision or a textbook; nor, with knowledge of its invalidity, should counsel cite as authority a decision that has been reversed or an official directive of the Department of Defense or any of the Departments, or one of their agencies, bureaus, branches, forces, commands, or units, that has been changed or rescinded. As publication in the public press, or on the radio or television, of the circumstances of a pending case may interfere with a fair trial and otherwise prejudice the due administration of justice, counsel should refrain from discussing such circumstances with representatives of the press, radio, or television unless authorized by the convening authority or other competent superior authority. c. Interviewing witnesses. Counsel may properly interview any witness or prospective witness for the opposing side in any case without the consent of opposing counsel or the accused. See 44h as to relations between the prosecution and the accused. In interviewing a witness, counsel should scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth when appearing as a witness at the trial. See Article 31. 43. SUSPENSION OF COUNSEL. Rules defining professional or personal misconduct which disqualify a person from acting as counsel before courts-martial may be announced by the Judge Advocates General of the armed forces in appropriate departmental regulations which shall provide for notice and opportunity to be heard and will also establish procedures to provide for the suspension of persons from acting as counsel before courts-martial. When any person acting as counsel before a court-martial is guilty of professional or personal misconduct, action may be taken by a convening authority, in accordance with such regulations, to recommend suspension of the person affected from practice as counsel before courts-martial of the armed force concerned. Suspension will not be effected except by the Judge Advocate General of the armed force concerned. The Judge Advocate General concerned may, upon good cause shown, modify or revoke a prior order of suspension. 44. TRIAL COUNSEL-a. Selection. See 6 for qualifications of trial counsel. b. Disqualifications. Whenever it appears to the court or to the trial counsel himself that any member of the prosecution named in the appointing order is for any reason, including misconduct, bias, prejudice, hostility, previous connection with a particular case, or lack of legal qualifications (for general courts-martial), disqualified or unable properly and promptly to perform his duties, a report of the facts will be made at once to the convening authority and appropriate action taken to insure that the disqualified member shall not act for the prosecution. c. Absence. For a proper reason (e.g., preparation of another case) the convening authority or the president may excuse from attendance during a trial or trials such of the personnel of the prosecution as will not be required. d. General duties. The trial counsel shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of the proceedings (Art. 38a). When charges are referred to him for trial, it is his duty to bring them promptly to trial before the court indicated in the reference for trial. 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. e. Reports-(1) Status of cases on hand. Unless otherwise directed by the convening authority, he will submit a weekly report to the latter through the president of a special court-martial or the law officer of a general court-martial, in which, in addition to such matter as may be required by the convening 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. (2) Result of trial. Upon final adjournment of the court in a case, the trial counsel will, in writing, notify the immediate commanding officer of the accused of the result, including any findings reached and any sentence imposed by the court. Unless otherwise directed by the convening authority, the trial counsel will furnish a copy of this report to the convening authority and, if the accused is in confinement, to the commanding officer to whose command the place of confinement is subject. Immediate action will be taken to release the accused in the event the trial results in an acquittal or in a sentence not involving confinement. See 21d and 22 in this respect. f. Duties prior to trial-(1) Examination of file. He will report to the convening authority any substantial irregularity in the order appointing the court or in the charges or accompanying papers. If the membership of the court to which the case is referred is reduced below a quorum for any reason of if the 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. Unless otherwise directed by the president or unless obviously unnecessary, he will give timely oral or written 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 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. See Article 49. If in disagreement with the defense counsel as to whether the attendance of a witness requested by the defense 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, 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 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 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 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 decisions 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, such 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 of saving time and expense, he should join in appropriate stipulations as to unimportant or uncontested matters. See 154b (Stipulations). 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 convening authority, or those of the staff judge advocate or legal officer, 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 27. Aside from opinions expressed in the proper discharge of his duty to prosecute (e.g., 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 open court when it is requested by the law officer (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. After the pleas, the trial counsel will, to the extent required by the law officer (president of a special court-martial), read the parts of this manual or of authoritative precedents that are pertinent to the definition and proof of any offense charged and to the defense thereto. He may make an opening statement-that is, a brief statement of the issues to be tried and what he expects to prove-but 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 court may, in its discretion, 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 (president of a special court-martial) otherwise directs, conduct the direct and redirect examination of witnesses called by the court, and if such witnesses are adverse to the prosecution, may conduct the cross-examination on behalf of the prosecution. 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 of the court that such copy has been so served. Except as otherwise directed by the convening 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 the charges on a rehearing. He will also permit the defense to examine from time to time the order appointing the court and all amending orders. Prior to trial, he should advise the defense of the probably 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 ho the accused intends to plead or whether an enlisted accused desires enlisted members on the court, 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. 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) and 83d (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 appointing order as an assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he is qualified to be a trial counsel as required by Article 27b, perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel of the court. See Article 38d. He will perform those duties in connection with trials which the trial counsel may designate. Except when the contrary affirmatively appears of record, all duties performed outside the 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; however, an assistant trial counsel who is not qualified to be a trial counsel as required by Article 27b may not perform duties in connection with the conduct of the prosecution of a case during the open sessions of a general court-martial except in the presence of a trial counsel or assistant trial counsel who is so qualified. See 6a and d for rules as to when the conduct of the prosecution devolves upon an assistant 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 38d. 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, whenever it appears to the court or to the defense counsel himself that any member of the defense named in the appointing order is for any reason, including unfitness, bias, prejudice, hostility toward the accused, lack of legal qualifications, or previous connection with the same case, unable promptly to perform his duties in any case. c. Absence. For a proper reason (e.g., preparation of another case) 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. See Article 38b. 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, civil or military, the 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 appointed to defend him at the trial, explain his general duties, and advise him of his right to select individual counsel, civil or military, or his own choice pursuant to Article 38b. 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. 47. ASSISTANT DEFENSE COUNSEL. Unless he is disqualified by reason of prior participation in the case (6a; Art. 27a), any person named in the order as an assistant defense counsel of a general or special court-martial may, under the direction of the defense counsel or 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 38e. 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. Except when the contrary affirmatively appears of record, 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; however, unless he has been selected by the accused as individual counsel, an assistant defense counsel who is not qualified to be defense counsel as required by Article 27 may not perform duties in connection with the conduct of the defense of a case during the open sessions of a general or special court-martial except in the presence of a defense counsel or assistant defense counsel who is so qualified, or in the presence of individual counsel. See 6a and d for rules as to when the conduct of the defense devolves upon an assistant defense counsel. 48. COUNSEL FOR THE ACCUSED-a. Statutory right to counsel of his own choice. The accused shall have 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 duly appointed pursuant to Article 27. Should the accused have counsel of his own selection, the duly appointed defense counsel and assistant defense counsel, if any, shall, if the accused so desires, act as his associate counsel; otherwise they shall be excused by the president of the court (Art. 38b). Civilian counsel will not be provided at the expense of the Government. 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, through the trial counsel, to the convening authority. The convening authority will take the following action: (1) If the requested counsel is reasonably available within his command, he will make the detail and order any necessary travel. (2) If the requested counsel is not under his command, he will take prompt action to ascertain whether the requested counsel is reasonably available and, if so, to obtain his services. (3) If he determines that the requested counsel is not reasonably available, he will so advise the accused. A person who has acted as a member of the prosecution in the same case, or who has been named in the appointing order as the trial counsel or assistant trial counsel in the case, shall be deemed not to be available for detail as individual counsel. See 6a and Article 27. The decision of the convening authority as to the availability of the requested counsel is subject to revision by his next superior authority on appeal by or on behalf of the accused. A military person who has been made available to act as individual counsel will, so far as is practicable, be relieved of all other duties which may interfere with the proper preparations and presentation of the accused's case. c. Duties in general. An officer or other military person acting as 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 a civil court 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 innocence of the accused or to tolerate any manner of fraud or chicane. When a defense counsel is designated to defend two or more co-accused in a joint or common trial, he should advise them of any conflicting interests in the conduct of their defense which would, in his opinion, warrant a request on the part of any of the accused for other counsel. d. Securing witnesses. He should make timely request to the trial counsel to secure the attendance of defense witnesses, and with a view to saving time, labor, and expense, he should cooperate with the trial counsel in the preparation of depositions and in appropriate stipulations as to unimportant or uncontested matters. See 154b (Stipulations). e. Request for enlisted members for the court. Before the trial he will advise an accused enlisted person of his right to have enlisted persons as members of the court. See Article 25c. If the accused elects to exercise this right, the defense counsel will prepare the written request required by Article 25c, have it signed by the accused, and forward it without delay, through the trial counsel, to the convening authority or to the court if trial is imminent. f. Consultation with the accused. He will explain to the accused the meaning and effect of a plea of guilty and his right to introduce evidence after such plea (70; app. 8a); his right to testify or to remain silent (148e, 149b; app. 8a); his right, after findings are announced, to make an unsworn statement and to introduce evidence as to matters in extenuation and mitigation (75c, 139b; app. 8a); and his right to assert any proper defense or objection, such as the statute of limitations in an appropriate case (68c, 74h). These explanations will be made regardless of the intentions of the accused as to testifying or as to how he will plead. Counsel should endeavor to obtain full knowledge of all the facts of the case before advising the accused, and he is bound to give the accused his candid opinion of the merits of the case. g. Preparation for trial. Ample opportunity will be given the accused and his counsel to prepare the defense, including opportunities to interview each other and any other person. See 42c and 44h. Counsel's preparation for trail should include a consideration of the essential elements of each offense charged and of the pertinent rules of evidence, to the end that the evidence he proposes to introduce in defense may be confined to competent evidence, and that he may be ready to make appropriate objection to any incompetent evidence that might be offered by the prosecution. If practicable, he should plan to introduce the defense evidence in sequence of events and to defend against the alleged offenses in the order charged. When he addresses the court, he will rise. The provisions of 44f(4) apply equally to counsel for the defense. h. Presentation of the defense. Counsel may make an opening statement for the defense similar to that indicated in 44g(2). This statement is ordinarily made just after the prosecution has rested or immediately following the opening statement of the trial counsel, but in exceptional cases the court may, in its discretion, permit it or other like statements to be made at other stages of the proceedings. On behalf of the defense, he conducts the direct and redirect examination of witnesses for the defense. He conducts cross and recross-examination of prosecution witnesses and of witnesses called by the court if they are adverse to the defense. See 72 as to closing arguments. i. Absence of accused. When the trial proceeds after the accused has voluntarily absented himself without authority (11), the counsel should continue to represent the accused. j. Duties after trial-(1) Clemency petition. At the close of the trial or as soon thereafter as practicable, if the accused is found guilty, the defense counsel shall, in a proper case, prepare a recommendation for clemency setting forth any matters as to clemency which he desires to have considered by the members of the court or the reviewing authority. He shall secure the signatures of those members of the court who have indicated their willingness to sign the recommendation, and shall submit it to the trial counsel for attachment to the record of trial. See 77a. (2) Appellate brief. In every court-martial proceeding, the defense counsel may, in the event of conviction, forward for attachment to the record of proceedings a brief of such matters as he feels should be considered in behalf of the accused on review, including any objection to the contents of the record which he may deem appropriate (82e; Art. 38c). (3) Advising accused of appellate rights. In the event the accused is convicted, the defense counsel will, immediately after trial, advise him generally of his appellate rights. For example, he should advise him of his right to be represented before the board of review and, in an appropriate case, he will assist the accused to secure such appellate representation by preparing a letter for the signature of the accused, addressed to the appellate defense counsel, or by other appropriate means. Although direct communication with the appellate defense counsel is authorized, a request for appellate representation ordinarily will be forwarded to the convening authority in order that it may be attached to the record of trial. The accused shall have 10 days from the date the sentence is adjudged in his case to forward a request that he be represented by appellate counsel before a board of review. Such a request should be made conditional upon the record being referred to a board of review under the provisions of Article 66 or Article 69. The failure of the accused to forward within 10 days a request for such representation may be regarded as a waiver of his right to appellate counsel before the board of review, if such board has taken its final action in the case prior to receipt of such request. The defense counsel should also advise the accused of any right he may have to appeal to the Court of Military Appeals and to be represented before that court by appellate defense counsel. See 102 in this connection. (4) Examination of record. See 82e for duties in connection with examination of the record of trial. 49. REPORTER-a. Authority for appointment. See 7 for the authority for, and the manner of, appointment and 33k as to the manner of directing that a reporter not be used in a special court-martial. b. Duties-(1) General. He shall record the proceedings of and testimony taken before courts-martial, courts of inquiry, or military commissions for which he is appointed (Art. 28) and may set down the same in the first instance in longhand, shorthand, or by mechanical or sound recording device. If a question is raised at trial as to whether any particular matter is included in the term, "proceedings of and testimony taken," the court will determine the question in accordance with applicable law and regulation. There will be no "off the record" discussions in open court or when the law officer is conferring with the court with respect to the form of the findings in closed session. See Article 39. The reporter will follow the forms prescribed for the preparation of records contained in appendix 9 and will be familiar with the provisions of 82. He will discharge his duties as promptly as practicable under the circumstances. (2) Copies of record. In general and special court-martial cases in which the sentence adjudged affects a general or flag officer, or includes death, dismissal, dishonorable or bad conduct discharge, or confinement for one year or more, the reporter will prepare an original and two copies of each record and of all documentary exhibits received in evidence, and additional copies of each record and of all documentary exhibits equal to the number of accused tried. In all other general and special court-martial cases, the reporter will prepare an original of each record and of all documentary exhibits received in evidence and copies of each record and of all documentary exhibits equal to the number of accused tried. In any general or special court-martial case, the convening authority may direct that additional copies of the record and of documentary exhibits be prepared. (3) Oath; compensation. See 114 as to oath and appropriate departmental regulations as to compensation. 50. INTERPRETER-a. Authority for appointment. See Article 28l See 7 for the authority for and the manner of, appointment and 53i for the rule as to appointment of an interpreter for an accused who does not understand the English language. b. Duties; oath; compensation. He shall interpret for the court, commission, or the accused. In questioning a witness through an interpreter the question should be put in the same interrogatory form as when questioning a witness not through an interpreter. The interrogator, for example, will ask, "What is your name?" rather than state to the interpreter, "Ask the witness what his name is." The interpreter should translate questions and answers as given to him. Thus, if the question is, "What is your name?" that question should be asked in the language of the witness, and the interpreter should not use such a form as, "They want to know what your name is." See 114 as to oath and appropriate departmental regulations as to compensation. 51. GUARDS, CLERKS, AND ORDERLIES. When appropriate, the convening authority or (if the trial is to be held at a distance) the commanding officer of the post, camp, or station where the trial is to be held will provide guards and detail suitable enlisted persons as clerks and orderlies to assist the members and officers of the court. Chapter X-General Procedural Rules REFERENCE TO CONVENING AUTHORITY-MISCELLANEOUS MATTERS-INTRODUCTION OF EVIDENCE-ACTION WHEN EVIDENCE INDICATES AN OFFENSE NOT CHARGED-WITHDRAWAL OF SPECIFICATIONS-INTERLOCUTORY QUESTIONS OTHER THAN CHALLENGES-CONTINUANCES 52. REFERENCE TO CONVENING AUTHORITY. Whenever a matter as to future proceedings in a trial by court-martial is referred to a convening authority exercising general court-martial jurisdiction, he will refer the matter to his staff judge advocate or legal officer for consideration and advice. 53. MISCELLANEOUS MATTERS-a. Order of proceedings. The chronological order of the usual proceedings in trials by general and special courts-martial is indicated in the guide to procedure in appendix 8 and in the forms of records in appendices 9 and 10. b. Proceedings in each case to be complete. In each case the proceedings and the record thereof must be completed without reference to any other case. For example, if several accused, who are to be tried at separate trials by the same court, are present while the personnel of the court, counsel, and the reporter are sworn (112c; app. 8; Art. 42), the fact that the required oats were administered in the presence of an accused must be shown in his record of trial and not by reference to the record of trial of one of the other accused. c. Joint and common trials. In joint trials (26d) and in common trials (33l) each of the accused must in general be accorded every right and privilege which he would have if tried separately. For example, each accused may, if he desires, be defended by individual counsel, make individual challenges for cause (62h), make individual peremptory challenges (62e), cross-examine witnesses, testify in his own behalf, introduce evidence in his own behalf, and, if an enlisted person, make an individual request that the membership of the court include enlisted persons (4a, 61g). In a joint or common trial, both court and counsel must be careful to notice evidence which is admissible against only one or some of the joint or several accused and consider it only against such accused. For example, see 140b (Confessions). When the evidence is equally applicable to several or all accused, however, needless repetition may be avoided by the use of appropriate language and consolidation of evidence pertinent to all accused. d. Sessions. A general or special court-martial will sit in closed sessions during the deliberation and voting upon the findings and sentence, and upon interlocutory questions, including challenges. Only the members of the court who are to vote shall be present at such closed sessions. See 62h(3) with regard to voting on challenges. After a general court-martial has finally voted on the findings, the court may request the law officer and the reporter to appear before the court in closed session to put the findings in proper form, and such proceedings shall be on the record. See 74f(1) for procedure. All other proceedings, including any other consultation of the court with counsel or the law officer, shall take place in open session, shall be made a part of the record, and shall be conducted in the presence of the accused, the defense counsel, the trial counsel, and, in general court-martial cases, the law officer. See Article 39. See 57g(2) and 73c(2) for rules governing certain proceedings had outside the presence of members of a general court-martial. e. Spectators; publicity. As a general rule, the public shall be permitted to attend open sessions of courts-martial. Unless otherwise limited by departmental regulations, however, the convening authority or the court may, for security or other good reasons, direct that the public be excluded from a trial. When practicable notices of the time and place of sessions of courts-martial will be published so that persons subject to the code may be afforded opportunity to attend as spectators provided attendance does not interfere with the performance of their duties. See also 118 (Contempts). The taking of photographs in the courtroom during an open or closed session of the court, or broadcasting the proceedings from the courtroom by radio or television will not be permitted without the prior written approval of the Secretary of the Department concerned. f. Witnesses. Ordinarily, witnesses other than the accused should be excluded from the courtroom except when they are testifying. To prevent the false shaping of testimony through collusion, coercion, or other means, the court, u0pon its own motion or upon motion of counsel, may instruct a witness to refrain from discussing his testimony or prospective testimony with anyone except counsel or the accused in the case. See appendix 8 for form of instruction. g. Opportunity to present and support contentions. Both sides are entitled to an opportunity properly to present and support their respective contentions upon any question or matter presented to the court for decision. Restricting argument, particularly in long and complicated cases, or an arbitrary refusal to entertain argument on an interlocutory question, may constitute error; however, the right to present argument should not be abused, and the court may in its discretion limit or refuse to hear argument when it is trivial, mere repetition, or made for the purpose of delay. Arguments throughout the trial may be oral, in writing, or both. See 82b(4) in this connection. h. Explanation of rights of accused. Ordinarily, the court need not volunteer advice to the accused during the course of the trial as it may be assumed that his counsel has performed his duties properly, has advised the accused of his rights and the law affecting the case, and that, for reasons best known to them, they desire to pursue a certain course. When deemed necessary, the court will cause to be explained to the accused any right which he appears not to understand. The right of the accused with respect to Article 43 (Statute of limitations (68c)), the meaning and effect of a plea of guilty (70), the right to remain silent or to testify as a witness (148e, 149b; Art. 31), and, after any finding of guilty is announced, to make a statement (75c) will, when applicable, be explained in open court unless it otherwise affirmatively appears of record that the accused is aware of his rights in the premises. See appendix 8a for forms of instructions. Whenever it appears warranted, the court should advise the accused of his right to testify for a limited purpose. For example, if it appears that the accused does not understand his right to testify for the limited purpose of showing the circumstances under which a confession was obtained without subjecting himself to cross-examination on the issue of guilt or innocence, an explanation should be made by the court. See 140a and 149b. i. Right of accused to interpreter. Upon a showing by the defense that the accused does not understand the English language and desires the services of an interpreter, the court will direct the trial counsel to take appropriate action to provide the accused with a competent interpreter. The latter will interpret for the accused all proceedings had in open court and all testimony given in any language other than that understood by the accused. The interpreter will be sworn before entering upon his duties. See 114 for form of oath. 54. INTRODUCTION OF EVIDENCE-a. Presentation of the case. Witnesses are usually examined in the following order: Witnesses for the prosecution, witnesses for the defense, witnesses for the prosecution in rebuttal, witnesses for the defense in rebuttal, witnesses for the court. The order of examining each witness is usually direct examination, cross-examination, redirect examination, recross-examination, and examination by the court. In a general court-martial, the examination by the court is ordinarily conducted by the law officer; thereafter, if necessary, members of the court may ask questions of the witness. The court should protect every witness from improper questions, harsh or insulting treatment, and unnecessary inquiry into his private affairs. See 150 and Article 31 for questions which a witness cannot be required to answer over his objection. See also 148, 149, 151, and 153 for other rules respecting the examination of witnesses. b. Responsibility of the court. The court is not obliged to content itself with the evidence adduced by the parties. When such evidence appears to be insufficient for a proper determination of the matter before it, or when not satisfied that it has received all available admissible evidence on an issue before it, the court may take appropriate action with a view to obtaining available additional evidence. The court may, for instance, require the trial counsel to recall a witness, to summon new witnesses, or to make an investigation or inquiry along certain lines with a view to discovering and producing additional evidence. c. Exclusion of improper evidence. When proffered evidence would be excluded on objection, the court may in its discretion bring the matter to the attention of any party entitled, but failing, to object to its admission. Such action is particularly important when improper questions are asked by a member of the court, or when improper testimony is elicited by questions asked by a member of the court-the reason for this being the natural hesitancy of the parties to object to a question asked by a member of the court and the weight likely to be given to testimony elicited through questions by the court. In the interest of justice, a court may always of its own motion exclude inadmissible evidence. Rules of evidence are stated in chapter XXVII and in various connections throughout this manual; for example, in 122c (Insanity), 162 (Fraudulent enlistment), and 164 (Desertion). d. Documentary evidence. In its discretion the court may direct that a document, although excluded as not admissible in evidence, be marked for identification and appended to the record for the consideration of the convening authority, and the court will so direct on request of the part offering the document See 154c (Offer of proof). When a document, such as an original record, which must or should be returned to the source from which it was obtained, is received n evidence or marked for identification, a suitable copy or extract copy thereof, certified as such by the trial counsel, will be substituted for such document and it will then be returned. Similar action may be taken to substitute an accurate description for an item of real evidence which must be returned to its source or is too bulky for inclusion in the record of trial. In this connection, see 138c (Real evidence). e. Views and inspections. In exceptional circumstances, the court, in the exercise of its sound discretion, may proceed to review or inspect the premises or place or an article or object if such view or inspection is necessary to enable the members better to understand and apply the evidence in the case. The proceeding is authorized only if conducted in the presence of counsel, the accused, and, in general court-martial cases, the law officer. The view should not be undertaken if the court is already familiar with the premises involved, or if photographs, diagrams, or maps adequately present the situation. The court may be escorted to the view by any person familiar with the premises and objects. The escort, without making any statement in the nature of evidence or argument, may point out particular features to be noted by the court. Before entering on his duties as escort, he will take the oath or affirmation prescribed in 114. The members may consider and apply the evidence in the light of the knowledge obtained by their inspection. The court should not hear witnesses or take evidence at the view, but anything said thereat by counsel, the authorized escort, or the court will be recorded verbatim and constitute a part of the record of trial in any general court-martial case or in any special court-martial case in which a verbatim record is taken. Reenactments of the events involved or acts alleged to have been committed are not authorized upon a view. The fact that a view or inspection has been made does not preclude the introduction in evidence of photographs or diagrams of articles or objects viewed, nor of maps or sketches of the premises or place viewed, if such evidence is otherwise admissible. f. Inquiry into mental status. See 122 for action by the court when it appears that further inquiry into the mental responsibility of the accused is warranted in the interest of justice. 55. ACTION WHEN EVIDENCE INDICATES AN OFFENSE NOT CHARGED-a. General. If at any time during the trial it becomes manifest to the court that the available evidence as to any specification is not legally sufficient to sustain a finding of guilty thereof or of any lesser included offense thereunder, but that there is substantial evidence, either before the court or offered tending to provide that the accused is guilty of some other offense not alleged in any specification before the court, the court may, in its discretion, either suspend trial pending action on an application by the trial counsel to the convening authority for direction in the matter or it may proceed with the trial. In the latter event a report of the matter may properly be made to the convening authority after the conclusion of the trial. b. Examples. Application of this rule would be appropriate when in a trial for the larceny of a watch the proof shows that the article taken was a compass, or when in a trial for the wrongful sale of property (Art. 108) the proof shows that the accused negligently lost the property. c. Trial of new charges. In any case, if charges for the offense indicated by the evidence are preferred and are referred for trial, they should be referred to a court none of whose members has participated in the formal trial. 56. WITHDRAWAL OF SPECIFICATIONS-a. General. The convening authority may direct the prosecution to make a declaration of record that a certain specification and, when appropriate, the charge under which it is laid is withdrawn and will not be pursued further at that trial. A specification will be withdrawn only when directed by the convening authority who may give such direction either on his own initiative or on application duly made to him. The convening authority may not withdraw a specification if the court has finally terminated the proceedings thereon by a finding or a ruling which amounts to a finding of not guilty. In a joint case or in a case referred for a common trial, he may limit the direction to one or more of the accused. b. Grounds for withdrawal. Proper grounds for the withdrawal of a specification include substantial defect in the specification, insufficiency of available evidence to prove the specification, and the fact that it is proposed to use one of the accused as a witness. If evidence on the issue of guilt or innocence has been received after a plea has been entered, a withdrawal of a specification because of a failure of available evidence or witnesses, without any fault of the accused, amounts to jeopardy and constitutes a trial in the sense of Article 44. However, withdrawal of a specification because of manifest necessity in the interest of justice is not a bar to further prosecution. Thus, if urgent and unforeseen military necessity requires that a trial be terminated, and it does not appear that the military situation will permit resumption of the trial within a reasonable time, the withdrawal of a specification will not prevent a later trial for the same offense. Similarly, if inadmissible information, highly prejudicial to either the Government or the accused, has been brought to the attention of the court, and it appears to the convening authority that the members of the court cannot be reasonable expected to remain uninfluenced thereby, he may withdraw the case from that court and refer it to another court. The power to withdraw a case after evidence has been taken on the issue of guilt or innocence will be exercised only with the greatest caution, under urgent circumstances, and for very plain and obvious causes. A specification will not be withdrawn arbitrarily or unfairly to the accused in any case. When a specification is withdrawn after evidence has been taken on the issue of guilt or innocence, the reasons therefore should be stated in the record of trial. c. Effect of withdrawal. A withdrawal of a specification during trial is not in itself equivalent to an acquittal or to a grant of pardon and is not as such a ground of objection or a defense in a subsequent trial. If the proceedings amounted to a trial in the sense of Article 44, the defense of former jeopardy should be asserted (68d). If a specification is withdrawn pursuant to a grant of immunity (148e, 150b), such grant of immunity may be asserted as a defense. d. Withdrawal before arraignment. If a specification is withdrawn before the court convenes for the trial of a case, the trial counsel should line out and initial the withdrawn specification on the charge sheet and renumber the remaining specifications or charges when appropriate. When a specification is withdrawn after the court has convened, but before the arraignment of the accused, the withdrawal should be announced before the arraignment and the withdrawn specification should not be brought to the attention of the court. See 65a. 57. INTERLOCUTORY QUESTIONS OTHER THAN CHALLENGES-a. Statutory provisions. The law officer of a general court-martial and the president of a special court-martial shall rule upon interlocutory questions other than challenges arising during the proceedings. Any such ruling made by the law officer of a general court-martial upon any interlocutory question other than a motion for a finding of not guilty or the question of accused's sanity shall be final and shall constitute the ruling of the court; but the law officer may change any ruling at any time during the trial (Art. 51b). b. Applicability of this paragraph. This paragraph (57) applies to all interlocutory questions arising during the proceedings in open court (i.e., to all questions other than the findings and sentence) except the question of whether a challenge shall be sustained. Any statement or indication in this manual to the effect that a certain question should be decided by the court is not to be understood as making an exception to the foregoing rule. See, for example, 53, 54, 55, 58, and 137. c. Rulings by the president of a special court-martial. The president of a special court-martial will rule in open court upon all interlocutory questions other than challenges arising during the trial, such as questions as to the admissibility of evidence offered during the trial, incompetency of witnesses, continuances, adjournments, recesses, motions, order of the introduction of witnesses, and the propriety of any argument or statement of the trial or defense counsel. If a member objects to a ruling of the president upon a question, the court shall be closed and the question voted on as stated in 57f. d. Rulings by the law officer-(1) General. A ruling by the law officer on an interlocutory question other than on a motion for a finding of not guilty or the question of the accused's sanity, being final so far as concerns the court, no repetition of the ruling is necessary. However, any question as to whether a ruling of the law officer is conclusive shall be determined by the law officer. Rulings by the law officer on a motion for a finding of not guilty (71a) and on the question of the sanity of an accused (122b) are final unless objected to by a member of the court. When proper objection is made to a ruling of the law officer on these two matters, he may give the court such instructions as will better enable the members to understand the question they are to determine and the manner in which it is to be determined. Thereafter the court will be closed and the question decided by a vote of the members of the court. The law officer shall not be present while the court is closed to deliberate or vote. (2) Treatment of proffered evidence. The law officer may examine a proffered item of real or documentary evidence before ruling upon its admissibility. He will take care that a proffered document (or, when practicable, an item of real evidence) is not exposed to risk of inadvertent examination by members of the court until he has ruled that the document (or item of real evidence) is admissible. In this connection, see 57g(2) for rules governing certain proceedings had outside the presence of the members of a general court-martial. The law officer should give the court appropriate instructions to disregard evidence which, once having been admitted is excluded by a subsequent ruling. e. Form of ruling. Each ruling by the president of a special court-martial and each ruling by the law officer which is subject to objection should be prefaced by a statement such as, "Subject to objection by any member." f. Voting on interlocutory questions. When voting on any interlocutory question other than a challenge, the members of the court shall vote orally, beginning with the junior in rank, and the question shall be decided by a majority vote. A tie vote on a motion for a finding of not guilty or on a motion relating to the question of the accused's sanity shall be a determination against the accused. A tie vote on any other question (e.g., an objection by either side to the admissibility of certain evidence in a trial by special court-martial) shall be a determination in favor of the accused. See Articles 51b and 52c. The voting is in closed session, but the president announces the decision in open court. See 62h(3) for the manner of voting on challenges. g. Necessary inquiry to be made; preponderance of evidence controls-(1) General. The ruling or decision on an interlocutory question should be preceded by any necessary inquiry into the pertinent facts and law. For example, the party making the objection, motion, or request may be required to furnish evidence or legal authority in support of his contention. Upon such inquiry, questions of fact are determined by a preponderance of the evidence. (2) Law officer. The law officer is responsible for rulings made by him, but he may consult with the court in open session upon appropriate matters such as a continuance, adjournment, or recess before making his ruling. When necessary, he may recess the court for a time sufficient to enable him to consult pertinent legal authorities before making his ruling. Except with respect to hearing arguments of counsel on proposed additional instructions (73c(2)), there is no requirement in courts-martial that the law officer conduct any hearings out of the presence of the members of the court. However, if it appears to the law officer that an offer of proof (154c) or preliminary evidence or argument with respect to the admissibility of proffered evidence, may contain matter prejudicial to the rights of the accused or the Government, he may, upon his own motion or upon motion of counsel, direct that the members of the court be excluded during the presentation of such offer of proof, preliminary evidence, or argument. Counsel for both sides, the accused, and the reporter will be present during such proceedings which, if they include the presentation of preliminary evidence, will be fully recorded, transcribed, and appended to the record of trial for the information of the convening authority. If such proceedings involve only arguments or offers of proof, they ordinarily will not be recorded but, in his discretion, the law officer may direct that such arguments or offers of proof, or pertinent parts thereof, be recorded, transcribed, and appended to the record of trial for the information of the convening authority. In this connection, however, see 154c for a limitation on the discretion of the law officer with respect to recording an offer of proof made by the defense. When, as a result of a hearing held out of the presence of the members of the court, the law officer rules that proffered evidence is admissible, such evidence will be offered in open court subject to the rules of evidence; in addition, if preliminary evidence adduced at such a hearing goes to the weight of the evidence admitted by the ruling of the law officer, both sides will be given an opportunity to present for the consideration of the members of the court any competent evidence affecting the weight to be given to the evidence so admitted. In this connection, see 140a (Confessions and admissions). In lieu of, or in addition to, any oral arguments of counsel with respect to the admissibility of evidence, the law officer may also direct counsel to submit written arguments or briefs on questions of law. Such written arguments or briefs need not be brought to the attention of the members of the court or made a part of the record of trial in the case. In his discretion, however, the law officer may direct that such written arguments or briefs, or pertinent parts thereof, be appended to the record of trial for the consideration of the convening authority. (3) President of a special court-martial. While the responsibility for a ruling devolves upon the president of a special court-martial, he may properly close the court and consult with the other members of the court before making his ruling. 58. CONTINUANCES-a. General. A court-martial may, for reasonable cause, grant a continuance to any party for such time and as often as may appear to be just (Art. 40). There is no limit to the number of continuances which may be granted. b. Postponement of trial. The necessity for a formal continuance may often be avoided by requesting the president to postpone the assembling of the court or by requesting the court to adjourn or to take a recess. As the law officer rules finally on any application for a continuance presented while the court is in session, the president of a general court-martial properly should obtain the advice of the law officer with respect to the request of a party for the postponement of the time for the assembling of the court. c. Grounds for continuance. Among the grounds that may be considered as reasonable are the absence of a material witness; sickness of the trial counsel, accused, defense counsel, or a witness; insufficient time to prepare for a trial; and a pending prosecution in a civil court based on the same act or omission. A failure by the trial counsel to cause a copy of the charges to be served as required by Article 35 may be a ground for a continuance. In time of peace no person shall, against his objection, be brought to trial before a general court-martial within a period of five days subsequent to the service of the charges upon him, or before a special court-martial within a period of three days subsequent to the service of charges upon him (Art. 35). d. Effect of denying application for continuance. The refusal by a court to grant a continuance when reasonable cause is shown will not ordinarily nullify the proceedings, but may be a good ground for directing a rehearing. The right to prepare for trial and to secure necessary witnesses is fundamental and must be extended to accused persons. Although the question of a continuance is one for the sound discretion of the court, whenever it appears that the court has abused its discretion and denied the accused a reasonable opportunity to prepare for trial or otherwise perfect his defense, the proceedings should be disapproved. A rehearing should be ordered only if the prejudice to the rights of the accused can be cured thereby. e. Application and action thereon. Application should be made to the court if in session, otherwise to the convening authority, but an application to the court for an extended delay, if based on reasonable cause, may be referred by the court to the convening authority. Although the proper time for making an application to the court is after the accused is arraigned and before he pleads, the court may permit it to be made at any other time. f. Evidence in support of application. Reasonable cause for the application must be alleged. For instance, when a continuance is desired because of the absence of a witness, the application should show that the witness is material that due diligence has been used to procure his testimony or attendance, that the party applying for the continuance has reasonable ground to believe that he will be able to procure such testimony or attendance within the period stated in the application, the facts which he expects to be able to prove by such witness, and that he cannot safely proceed with the trial without such witness. In general the facts as set forth in the application may be accepted as substantially true; but if long or repeated delay is involved, or the facts are disputed or improbably, or if any other good reason therefor exists the applicant may be required to furnish further proof. On any issue of law or fact arising in the proceedings on an application for a continuance, both parties will be given an opportunity to present evidence and to make an argument. An application based on the absence of a witness may be denied when the opposite party is willing to stipulate that the absent witness would testify as stated in the application unless it clearly appears that such denial would be prejudicial. Chapter XI-Organization of the Court and Arraignment of the Accused ASSEMBLING THE COURT-ATTENDANCE AND SECURITY OF ACCUSED-PRELIMINARY ORGANIZATION OF THE COURT-CHALLENGES-WITNESS FOR THE PROSECUTION-INVESTIGATING OFFICER-ARRAIGNMENT 59. ASSEMBLING THE COURT. A general or special court-martial assembles at its first session in accordance with the order appointing it-thereafter according to adjournment. When, as is usually the case, the appointing order, after stating the hour and date of the first meeting, adds the words "or as soon thereafter as practicable"; or when, as is often the case, the court adjourns to meet at the call of the president, or whenever advisable or necessary for any reason, the president of the court, after conferring with the law officer in an appropriate case, will fix the hour and date for the first or subsequent meeting, as the case may be, and advise the trial counsel in order that proper notice of the meeting may be given to all concerned. See 58b (Postponement of trial). A court-martial may hold sessions at any hour of the day, but should not meet at unusual hours, nor should the duration of the sittings be unusually protracted, unless the court is informed by the convening authority that the case is one of extraordinary urgency and that such a measure is therefore warranted. 60. ATTENDANCE AND SECURITY OF ACCUSED. The convening authority, the ship or station commander, or other proper officer in whose custody or command the accused is at the time of trial is responsible for the attendance of the accused before the court. The accused will be properly attired in the class of dress or uniform prescribed by the president for the court. An accused officer, warrant officer, or enlisted person will wear the insignia of his rank or grade and may wear any decorations, emblems, or ribbons to which he is entitled. The presence of the accused through-out the proceedings in open court is, unless otherwise stated essential. See 11c (Effect of voluntary absence from trial) and 74f(1) (Form of the findings-General court-martial). Neither the court nor the trial counsel as such is responsible for, or has any authority in connection with, the security of a prisoner being tried, and neither the court nor the trial counsel as such has any control over the imposition or nature of the arrest or other status of restraint of an accused. However, the court or the trial counsel may make recommendations to the proper authority as to these matters. The court does have control over the accused insofar as his personal freedom in its presence is concerned. 61. PRELIMINARY ORGANIZATION OF THE COURT-a. Preconvening procedures. A court-martial should not be called to order for the trial of a new case until the law officer (president of a special court-martial), after examining the order appointing the court and making an informal inquiry of the personnel present, has determined that the accused and a quorum of the court are present for the trial of the case, and that the appointed members of the prosecution and defense present are apparently qualified, as prescribed by Article 27b or c, to conduct the prosecution and defense of the case. In determining the presence of a quorum of the court, the law officer or president should consider whether an enlisted accused has made a proper request for enlisted members; if so, at least one-third of the members present must be enlisted members unless the convening authority has determined that eligible enlisted persons are not available. In this connection, see 36c(2) and 41d(2). b. Seating of personnel and the accused. When the court is ready to proceed, it is called to order by the president. The members will be seated with the president in the center and other members alternately to the right and left according to rank. If the rank of a member is changed, he will sit according to his new rank. The law officer will sit apart from the court. Depending upon the size and arrangement of the courtroom, other personnel and the accused will be seated as the president directs, except that the accused will be permitted to sit with his counsel. See appendix 8 for suggested seating arrangements for general and special courts-martial. c. Announcing personnel of the court and the accused. After the court is called to order for the trial of a new case the trial counsel will announce the name of the accused and will state by what appointing order (including any amendment thereof) the court is convened. He will then announce the names of the law officer, the members, and counsel who are present, and the names of members and counsel who are absent. Similar announcement will be made whenever there is a change in the law officer, the members, or counsel present, either through the appearance of new personnel or personnel previously absent, or through the absence of personnel previously present. When the court assembles after an adjournment or recess, or after it has been closed for any reason, the trial counsel will state in open court whether all parties to the trial who were present at the time of the adjournment or recess, or at the time the court closed, are present. d. Swearing reporter and interpreter. After accounting for the personnel, the trial counsel will swear the reporter and interpreter, if any. See 114 for oath. A new reporter or interpreter appointed during the course of a trial will be sworn before entering upon his duties. e. Introduction of prosecution counsel. The trial counsel will next announce whether the legal qualifications of the members of the prosecution are other than as stated in the appointing order and whether any member of the prosecution has acted as investigating officer (64), law officer, court member, or member of the defense in the same case, or has acted as counsel for the accused at a pretrial investigation or other proceedings involving the same general matter (6a; Art. 27). If it appears that the trial counsel or any of his assistants may be disqualified by reason of prior participation in the case, the court will initiate an inquiry to determine whether the individual concerned is, in fact, disqualified and, if so, whether he has acted for the prosecution (6a, d). When it appears that a member of the prosecution is disqualified by reason of prior participation and that he has acted as a member of the prosecution in the case before the court, the court should adjourn and report the facts to the convening authority. If the disqualified member has not acted for the prosecution, the proceedings may continue, but the disqualified member will not be permitted to act for the prosecution during any future state of the proceedings and he will be excused forthwith. When, as a result of excusing a disqualified member of the prosecution, nonqualified trial counsel or assistant trial counsel remains, the court should adjourn and report the facts to the convening authority. Any change in prosecution counsel during the trial and the qualifications of any new counsel should be brought to the attention of the court in the manner prescribed in the preceding subparagraph. f. Introduction of defense counsel-(1) General rules as to legal qualifications. A general court-martial is not legally constituted unless the appointed defense counsel has been certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member (Art. 27b). Similarly, a special court-martial is not legally constituted unless the following jurisdictional requirements with respect to the legal qualifications of appointed defense counsel are satisfied: (a) If the appointed trial counsel is qualified to act as counsel before a general court-martial, the appointed defense counsel shall be a person similarly qualified (Art 27c(1)); or (b) If the appointed trial counsel is a judge advocate, or a law specialist, or a member of the bar of a Federal court or the highest court of a State, the appointed defense counsel shall be one of the foregoing (Art. 27c(2)). In addition to the foregoing requirements, which are jurisdictional, it is a purpose of Articles 27 and 38 that an accused person shall, if he desires, be represented at his trial by general or special court-martial by a counsel having legal qualifications equivalent to those of any member of the prosecution who has legal qualifications. For example, in a trial by special court-martial, if an assistant trial counsel is qualified to act as counsel of a general court-martial or has any of the legal qualifications enumerated in Article 27c(2), the accused should be advised that he is entitled to be represented by counsel having equivalent qualifications, even though the appointed trial counsel has no legal qualifications; similarly, in a trial by general court-martial, should the accused by represented by counsel of his own selection who is not qualified to act as counsel before a general court-martial, the accused should be advised that he is entitled to be represented by counsel who is qualified to act as counsel before a general court-martial. (2) Ascertaining legal qualifications of counsel for the defense. After the court has ascertained the qualifications of the members of the prosecution, the trial counsel will ask the accused whom he desires to introduce as counsel. Counsel representing the accused will then be asked to state whether the legal qualifications of the appointed members of the defense are other than as stated in the order appointing the court. Should the accused introduce counsel of his own selection, and the qualifications of such counsel are not shown in the order appointing the court, his selected counsel will be asked to state whether he has been certified by an appropriate Judge Advocate General as competent to act as counsel before a general court-martial, and, if not, whether he has any of the legal qualifications enumerated in Article 27b(1). (3) Action when defense counsel is not legally qualified. If the appointed defense counsel of a general court-martial has not been certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member (Art. 27b), the court will adjourn and report the matter to the convening authority. Similar action will be taken by a special court-martial when it appears: (a) That the appointed trial counsel is qualified to act as counsel before a general court-martial, but the appointed defense counsel is not so qualified (Art. 27c(1)); or (b) That the appointed trial counsel is a judge advocate, or a law specialist, or a member of the bar of a Federal court or the highest court of a State, but the appointed defense counsel is not one of the foregoing (Art. 27c(2)). If the foregoing jurisdictional requirements have been met, but no member of counsel for defense present, including the individual counsel, has legal qualifications equivalent to those of any member of the prosecution who is legally qualified, the law officer (president or a special court-martial) will advise the accused of his right to such counsel and will ask him whether he is willing to proceed to trial without counsel so qualified. If the accused expressly requests that he be represented by the defense counsel then present, including individual counsel, if any, and states that he does not wish the services of a counsel who has the requisite equivalent legal qualifications, the trial will proceed. If not, the court will adjourn pending procurement of a defense counsel who has the requisite qualifications. Regardless of the legal qualifications of individual counsel, the duly appointed defense counsel and assistant defense counsel shall, if the accused so desires, act as his associate counsel; otherwise they shall be excused by the president of the court (Art. 38b). (4) Prior participation of defense counsel in same case. After the court has determined that the defense counsel has the requisite legal qualifications, the trial counsel will ask the counsel representing the accused to state whether any member of the defense present, including individual counsel, is the accuser or has acted in the same case as a member of the prosecution (6a, d), or as investigation officer (64), law officer, or court member. If it appears that any member of the defense has previously acted in the same case for the prosecution, such member will be excused forthwith. If a member of the defense if the accuser or has participated in the same case as an investigating officer, law officer, or court member, he will be excused unless the accused expressly requests his services. If, as a result of excusing a member of the defense, the accused is left without counsel having the requisite legal qualifications, the court will adjourn and report the matter to the convening authority. (5) Change of defense counsel during trial. Any change in defense counsel during the trial and the qualifications of any new counsel should be brought to the attention of the court and the accused in the manner prescribed in this subparagraph (61f). g. Announcement of request for enlisted members. When the court has ascertained that counsel representing the prosecution and defense are qualified to perform their respective duties, the law officer (president of a special court-martial) will so state. Thereupon, the trial counsel will, in the case of an enlisted accused, announce whether the accused has made a request in writing that the membership of the court include enlisted persons. See appendix 8. If a written request, signed by an enlisted accused, is not made prior to or at this time, the accused may not thereafter assert his right to have enlisted members on the court. If a proper request for enlisted members is made prior to or at this time, the trial may not proceed unless at least one-third of the members actually sitting on the court are enlisted persons or unless the convening authority has directed that the trial proceed in the absence of enlisted members. See 4a and c. When one or more, but not all, of the accused being tried at a joint or common trial make a proper request for enlisted members, the court will take action similar to that prescribed when a motion to sever has been granted. In this connection, see 69d. h. Administration of oaths. The accused, a quorum of the court, properly qualified counsel, and, in a general court-martial, the law officer, being present, the members of the court and the law officer will be sworn by the trial counsel; thereafter, the president of the court will swear the members of the prosecution and the defense, including any individual counsel (civilian or military). All personnel, including the law officer, counsel, the accused, the reporter, and the interpreter, if any, will stand while the oaths are being administered. See 114 as to oaths. i. Convening of court. After the oaths have been administered, the convening of the court is complete. 62. CHALLENGES-a. Statutory provisions. Members of a general or special court-martial and the law officer of a general court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The court shall determine the validity of challenges for cause, and shall not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered. Each accused and the trial counsel shall be entitled to one peremptory challenge, but the law officer shall not be challenged except for cause (Art. 41). b. Disclosing grounds for challenges. After the members of the court, the law officer, and counsel have been sworn, the trial counsel will announce to the court the general nature of the charges, the name of the accuser, the investigating officer, the officer or officers forwarding the charges to the convening authority, and the name of any court member or law officer who participated in any proceedings already had. He will then disclose in open court every ground for challenge believed by him to exist in the case and will request that the law officer and each member do likewise with respect to grounds of challenge, whether against the law officer or member himself or against any others who are subject to challenge for cause. Among the grounds for challenge which a member or the law officer should disclose are these: That he has participated in the investigation of the case, has acted as counsel for the accused, will be a witness for the prosecution, or has forwarded the charges to the convening authority with a recommendation concerning trial by court-martial. Similar disclosures and requests will be made by the trial counsel with respect to a new member or law officer; and the trial counsel, any member, or the law officer will disclose any such ground at any time during the proceedings that he becomes aware of it. Without challenging a member for cause, the trial or defense counsel may question the court, or individual members thereof, concerning the existence or nonexistence of facts which may disclose a proper ground of challenge for cause. Thus the trial counsel, after advising the court that an offense charged against the accused is punishable by death, might ask, "Does nay member of the court have any conscientious scruples against imposing the death penalty in a proper case?" If he desires, the trial counsel might ask individual members to answer such a question. Similarly, the defense counsel might question the court, or individual members thereof, with respect to whether they know the accused and, if so, whether they are hostile or friendly toward him. It is optional with the questioning party whether the member being questioned shall be sworn to testify as to his competency before answering such preliminary questions. c. Action upon disclosure. If it appears from any disclosure that the law officer or a member is subject to challenge on any ground stated in clauses (1) to (8) of 62f, and the fact is not disputed the law officer or member will be excused forthwith. If the law officer is excused or the court is reduced below a quorum, the court will adjourn pending appointment of a new law officer or additional members. Except as just stated, no action is required under this paragraph (62c) with respect to any disclosure that may be made; but proceedings under this paragraph are without prejudice to any rights of challenge on either side. d. When made; reconsideration; opportunity to challenge new member. Challenges should be made before arraignment, but the court may permit a challenge for cause to be presented at any stage of the proceedings. A challenge will be so permitted if the challenger has exercised due diligence or if the challenge is based on any of the grounds stated in clauses (1) to (8) of 62f. The fact that a particular challenge for cause has been adversely determined does not preclude the court from again entertaining it if good cause, such as newly discovered evidence, is shown. Full and timely opportunity will be given to challenge every new member or law officer. e. Peremptory challenges. A peremptory challenge does not require any reason or ground therefor to exist or to be stated. It may be used before, during, or after challenges for cause, or against a member unsuccessfully challenged for cause, or against a new member if not previously utilized in the trial. It cannot be used against the officer. A member challenged peremptorily will be excused forthwith. In a joint or common trial each accused is entitled to one peremptory challenge. f. Challenges for cause-grounds for. Among the grounds of challenges for cause against members of special and general courts-martial and (unless otherwise indicated by the context) the law officer of a general court-martial are the following: (1) That the challenged law officer or member is not eligible to serve as law officer or member, respectively, on courts-martial. (2) That he is not a member or law officer of the court. (3) That he is the accuser as to any offense charged. See Article 1(11) for definition of accuser. (4) That he will be a witness for the prosecution. See 63 for definition of witness for the prosecution. (5) That he was the investigating officer as to any offense charged. See 64 for definition of investigating officer. (6) That he has acted as counsel for the prosecution or the accused as to any offense charged. (7) That (upon a rehearing or a new trial) he was a member of the court which first heard the case. (8) That he is an enlisted member who is assigned to the same unit as the accused. See 4a and Article 25c(2) for definitions of the word "unit". (9) That he has forwarded the charges in the case with his personal recommendation concerning trial by court-martial. (10) That he has formed or expressed a positive and definite opinion as to the guilty or innocence of the accused as to any offense charged. (11) That he has acted in the same case as the convening authority or as the legal officer or staff judge advocate to the convening authority. (12) That he will act in the same case as the reviewing authority (84) or as the legal officer or staff judge advocate to the reviewing authority (85a). (13) Any other facts indicating that he should not sit as a member o law officer in the interest of having the trial and subsequent proceedings free from substantial doubt as to legality, fairness, and impartiality. Examples of other facts constituting grounds for challenge are: That (upon a rehearing or new trial) he was the law officer of the court which first heard the case; that he will be a witness for the defense; that he testified or submitted a written statement in connection with the investigation of the charges (unless at the request of the accused); that he has officially expressed an opinion as to the mental condition of the accused; that, when it can be avoided, a member is junior in rank or grade to the accused; that he has a direct personal interest in the result of the trial; that he is in any way closely related to the accused; that he participated in the trial of a closely related case; that he is decidedly hostile or friendly to the accused; that (in a case involving an offense punishable by death) a member has conscientious scruples against imposing the death penalty; that, not having been present as a member when testimony on the merits was heard, or other important proceedings were had in the case, his sitting as a member will involve an appreciable risk of injury to the substantial rights of an accused, which risk will not be avoided by a reading of the record. In connection with this last example, see 41e and f, and 62h(1). g. Limitations on inquiry as to eligibility of law officer. A challenge against a law officer based on the ground that he is not eligible to act as law officer (62f)(1)) will not be sustained unless it is shown: (1) That he is not an officer; or (2) that he is not on active duty with an armed force; or (3) that he is not a member of the bar of a Federal court or of the highest court of a State of the United States; or (4) that he has not been certified to be qualified for duty as a law officer by the Judge Advocate General of the armed force of which he is a member. The hearing on such a challenge will be limited to the issue of determining whether any one of the four reasons enumerated above exists. In this connection the appointment of an officer as law officer of a general court-martial is prima facie evidence that he is an officer on active duty with an armed force; the recital of his legal qualifications in the appointing order is prima facie evidence of the facts recited therein. An inquiry into the general educational legal, or judicial experience of the law officer is improper. h. Procedure-(1) Manner of making challenges. After any challenges made by the trial counsel have been decided, he will, after complying with any request made by the accused to be permitted to examine the papers referred to in 44h, give the accused an opportunity to exercise his rights as to challenge. The accused thereupon may challenge, in turn, the law officer and each member to whom he objects. As to peremptory challenges, see 62e. Full and timely opportunity will be given to the accused, including each accused in a joint or common trial, to exercise his right of challenge. A challenge may be withdrawn by the challenger for any reason, as when the challenged member makes a statement or reply which is satisfactory to the challenger. A challenge on the ground that a member was absent when testimony on the merits or other important proceedings was had will often be withdrawn by the challenger upon his being informed that certain witnesses will be recalled and re-examined. (2) Inquiry. If a member or law officer is challenged for any of the first eight grounds enumerated in 62f, and he admits the fact upon which the challenge is based, or if in any case it is manifest that a challenge will be unanimously sustained, the member or law officer will be excused forthwith unless objection or question is made or raised; otherwise the challenge, if not withdrawn, must be passed on by the court after both sides have been given an opportunity to introduce evidence and to make an argument. The challenger may subject the challenged member or law officer to an examination under oath as to the subject matter of the challenge. For form of the oath, see 114. Ordinarily, the person against whom a challenge for cause has been made will take no part in the hearings upon such challenge except when called upon to testify or to make a statement as to his competency; however, the law officer (president of a special court-martial) shall continue to rule upon interlocutory questions arising during the hearing although the challenge was made against him and although he may, at the time such a question arises, be testifying under oath as to his competency. In the latter event, he should preface any ruling by a statement such as, "As law officer (president) I rule that..." Courts should be liberal in passing upon challenges, but need not sustain a challenge upon the mere assertion of the challenger. The burden of maintaining a challenge rests on the challenging party. A failure to sustain a challenge when good ground is shown may require a disapproval on jurisdictional grounds or cause a rehearing because of error injuriously affecting the substantial rights of an accused. (3) Deliberation and voting. Deliberation and voting upon a challenge will be in closed session, and the law officer and the challenged member, if any, will be excluded. The vote upon the challenge is by secret written ballot, which ballot may be in the form "Sustained" or "Not sustained." See Article 51a as to counting and checking the vote and announcing the result of the ballot. Deliberation on the challenge may properly include full and free discussion. The influence of superiority in rank will not be employed in any manner in an attempt to control the independence of members in the exercise of their judgment. A majority of the ballots cast by the members present at the time vote is taken shall decide the question of sustaining or not sustaining the challenge. A tie vote on a challenge disqualifies the member challenged (Art. 52c). Upon the court being opened the president shall state in open court that the challenge has been sustained or not sustained. When five members of a general court-martial (three in a special court-martial) are present and one is challenged, the remaining four (two) may vote on the challenge. SPELLCHECK BELOW 4/24/07 (4) Action. If the challenge is sustained, the challenged member or law officer will withdraw from the court; otherwise he will resume his seat. The court will then proceed to consider the next challenge, if one be presented. When a court has been reduced below a quorum, or when the number of enlisted persons on a court is reduced below one-third in a case in which the accused has requested enlisted members, or when a challenge of the law officer for cause is sustained, the court will adjourn and report the matter to the convening authority. 63. WITNESS FOR THE PROSECUTION. If at any stage of the proceedings the law officer or any member of the court is called as a witness by the prosecution, he shall, before qualifying as a witness, be excused from further duty as law officer or member, respectively, in the case. Whether the law officer or a member called as a witness for the court is to be considered as a witness for the prosecution depends on the character of his testimony. In case of doubt he will be excused as law officer or member, respectively. If a witness called by the defense testifies adversely to the defense, he does not thereby become a "witness for the prosecution." 64. INVESTIGATING OFFICER. Within the meaning of the fifth clause of 62f and Articles 25d(2), 26a, and 27a, the term "investigating officer," as applied to a particular offense, shall be understood to include a person who, under the provisions of 34 and Article 32, has investigated that offense or a closely related offense alleged to have been committed by the accused. The term also includes any other person who, as counsel for, or a member of, a court of inquiry, or as an investigating officer or otherwise, has conducted a personal investigation of a general matter involving the particular offense; however, it does not include a person who, in the performance of his duties as counsel, has conducted an investigation of a particular offense or a closely related offense with a view to prosecuting or defending it before a court-martial. But see 6a and 62f(6). 65. ARRAIGNMENT-a. General. The court being organized and both parties ready to proceed, the trial counsel will present the law officer and the members of the court with copies of the charges and specifications upon which the accused is about to be tried. See 56d in this connection. He will then read to the accused the charges and specifications, and will call upon each of the accused to plead thereto. This proceeding constitutes the arraignment. The pleas are not part of the arraignment. The fact that the service of the charges was within five days of the arraignment before a general court-martial (three days in a case before a special court-martial) does not prevent the arraignment, even though the accused objects on that ground to the proceedings, but such fact is available, in time of peace, as a ground of valid objection to any further proceedings in the case at that time (Art. 35). The accused may waive the reading of the charges and specifications. As a rule, after arraignment in a case involving several charges and specifications, the procedure to be followed will be to receive pleas according to numerical order on the specifications of the first charge, then on the first charge, and so on with the rest. When appropriate, a single plea may be entered as to all charges and specifications without enumerating them. b. Additional charges. After the accused has been arraigned upon certain charges, additional charges, which the accused has had no notice to defend and regarding which the right to challenge has not been accorded him, cannot be introduced, nor may the accused be required to plead thereto. However, if all the usual proceedings prior to arraignment are first had with respect to such additional charges, including proceedings as to qualifying counsel and excusing and challenging the law officer and members of the court, such charges may be introduced, the accused may be arraigned on them, and the trial may proceed on both sets of charges as the trial of one case. It is not necessary that any official or clerical assistant of the court be resworn when additional charges are introduced. An application for a reasonable continuance should be granted. Chapter XII-Pleas and Motions GENERAL-MOTIONS RAISING DEFENSES AND OBJECTIONS-MOTIONS TO DISMISS-MOTIONS TO GRANT APPROPRIATE RELIEF-PLEAS-MOTIONS PREDICATED UPON THE EVIDENCE 66. GENERAL. For matters dealing with the arraignment, see 65. Pleas in court-martial procedure are pleas of guilty, not guilty, and pleas corresponding to permissible findings (70, 74b). Defenses and objections raised before a plea is entered shall be raised only by motion to dismiss or to grant appropriate relief as provided in this chapter. Pleas are entered and, except as otherwise stated, motions raising defenses and objections are made after arraignment. 67. MOTIONS RAISING DEFENSES AND OBJECTIONS.-a. Defenses and objections which may be raised. Any defense or objection which is capable of determination without trial of the issue raised by a plea of not guilty may be raised before trial by reference to the convening authority, or by motion to the court before a plea is entered. Reference of such matters to the convening authority before trial is an administrative procedure and action thereon shall be without prejudice to the renewal of the assertion by motion to the court. Defenses and objections such as that trial is barred by the statute of limitations, former jeopardy, pardon, constructive condonation of desertion, former punishment, promised immunity, lack of jurisdiction, and failure of the charges to allege an offense should ordinarily be asserted by motion to dismiss before a plea is entered; but failure to assert them at that time does not constitute a waiver of the defense or objection. Unless otherwise stated, failure to assert any such defense or objection-except lack of jurisdiction or failure of the charges to allege an offense-before the conclusion of the hearing of the case constitutes a waiver. b. Defenses and objections which must be raised. Defenses and objections based on defects in the preferring of charges, reference for trial, form of the charges and specifications, investigation, or other pretrial proceedings other than objections going to the jurisdiction of the court or the failure of the charges to allege an offense may be raised only by a motion for appropriate relief before a plea is entered. Failure to present any such objection prior to plea constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver. c. Form and content of motion. The motion raising a defense or objection should include all such defenses and objections then available and known to the accused. Defenses and objections which may appear to be available to the accused shall, if not asserted, be brought to the attention of the accused in any case in which he is not represented by counsel and may be brought to his attention in any case. The motion should briefly and clearly set forth the nature and grounds of the defense or objection which it is intended to raise. It may be presented orally or in writing. The substance of the motion and not its form or designation will control; for instance, if an accused makes a motion which he calls a motion for appropriate relief, but which in fact raises an objection to trial on jurisdictional grounds, the motion will be treated as a motion to dismiss d. Time of making motions. A motion raising any of the defenses and objections discussed in a and b above should be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter. Certain other motions predicated upon issues raised by the evidence in the case, such as motions for a finding of not guilty and motions to dismiss the proceedings on the grounds of res judicata, should generally be made after the prosecution has rested its case or at the conclusion of all the evidence. A motion to inquire into the mental condition of the accused (122) or to dismiss the proceedings on the ground that the accused lacks the requisite mental capacity (120c) may be raised at any time during the trial. e. Hearing on the motion. A motion raising a defense or objection will be determined at the time it is made unless the court defers action on the motion until a later time. Before passing on a contested motion, the court will give each side an opportunity to introduce pertinent evidence and to make an argument. Except as otherwise indicated in the discussion of motions (68c Statute of limitations) and elsewhere (122a, Insanity), the burden rests on the accused to support by a preponderance of evidence a motion raising a defense or objection. A decision on such a motion is an interlocutory matter. If the motion raises a contested issue of fact which should properly be considered by the court in connection with its determination of the accused's guilt or innocence, the introduction of evidence thereon may be deferred until evidence on the general issue is received. For example, if a specification alleges that an offense was committed at a time which is within the period permitted by the statute of limitations and the accused makes a motion to dismiss on the ground that trial is barred by Article 43, asserting that the offense was committed at an earlier time than that alleged, the introduction of evidence pertinent to the motion may be deferred and the matter considered by the court in its deliberation on the issue of guilt or innocence. See also 122b for a discussion of the question of the mental responsibility of the accused in connection with the findings on the general issue. f. Effect of rulings on motion. The denial of a motion raising a defense or objection does not prevent the entering of another motion to the same specification or charge. The court may reconsider its action in denying or sustaining a motion as long as the case is before the court. Except as otherwise indicated in the discussion on motions, an accused will not be required to plead to a specification or charge so long as the action of the court in sustaining a motion to dismiss or for appropriate relief relating to the specification or charge stands; but when all such motions as to a given charge or specification are denied, the accused should enter a plea or, if he stands mute, a plea of not guilty should be entered for him by the court. Notwithstanding the action of the court on a motion raising a defense or objection, the trial may proceed in the usual course as long as one or more specifications and charges remain as to which a plea stands. For example, when a motion to dismiss is sustained as to all but one specification and charge to which the plea is not guilty, the trial on that specification and charge may continue. But when the trial cannot proceed further as the result of the action of the court on a motion raising a defense or objection, the court will adjourn and submit the record of its proceedings so far as had to the convening authority. The convening authority may not return to the court for reconsideration a ruling of the court which amounts to a finding of not guilty, such as the granting of a motion to dismiss because of lack of mental responsibility at the time of the offense (120b), or the granting of a motion for a finding of not guilty (71a; Art. 62). As to motions granted by the court which do not amount to a finding of not guilty, the convening authority may, if he disagrees, return the record of trial to the court with a statement of his reasons for disagreeing and with instructions to reconvene and reconsider its ruling with respect to the matters as to which he is not in accord with the court (Art. 62a). To the extent that the court and the convening authority differ as to a question which is solely one of law, such as whether the charges allege an offense cognizable by a court-martial, the court will accede to the views of the convening authority; but if the matters as to which the convening authority disagrees are issues of fact, such as those which may be presented on an objection to trial on the ground that the accused lacks the requisite mental capacity at the time of trial (120c), the court will exercise its sound discretion in reconsidering the motion. The order returning the record should include an appropriate direction with respect to proceeding with the trial or any further appropriate action (Art. 62a). If the convening authority finds that the action of the court was proper but that the defect raised by the motion can be cured, he will take appropriate action to remedy the defect and return the record to the court for trial as above indicated. If he does not wish to return the record for trial, he will take appropriate action to conclude the case by the publication of appropriate orders in cases wherein the action of the court operates as a bar to further prosecution. Generally such action should be taken if the proceedings are terminated by sustaining a motion to dismiss because of former jeopardy, pardon, constructive condonation of desertion, promised immunity, or when findings of not guilty are entered on motion. In other cases, he will take action appropriate under the circumstances. g. Inadmissible defenses and objections. Such objections as that the accused, at the time of the arraignment, is undergoing a sentence of a general court-martial, or that owing to the long delay in bringing him to trial he is unable to disprove the charge or to defend himself, or that his accuser was actuated by malice or is a person of bad character, or that he was released from restraint upon the charges are not proper subjects for motion prior to plea, however much they may constitute ground for a continuance or affect the questions of the truth or falsity of the charge or of the measure of punishment. The same is true in general as to objections that are solely matters of defense under a plea of not guilty and, in effect, merely contest the truth of the allegations of a charge. 68. MOTIONS TO DISMISS-a. General. A motion to dismiss properly relates to any defense or objection raised in bar of trial. Among the defenses and objections which may be raised by this motion prior to entering a plea are lack of jurisdiction (68b), failure of the charges to allege an offense (68b), running of the statute of limitations (68c), former jeopardy (68d), pardon (68e), constructive condonation of desertion (68f), former punishment (68g), and promised immunity (68h). b. Lack of jurisdiction; failure to allege an offense-(1) General. If the court lacks jurisdiction or if the charges fail to allege any offense under the code the proceedings are a nullity. These objections cannot be waived and may be asserted at any time. (2) Jurisdiction of the court over the person. A motion to dismiss on the ground of lack of jurisdiction over the person may be based on the absence of any of the requisites stated in 8. (3) Failure to allege an offense. By a motion to dismiss the accused may object to the sufficiency of a specification to allege any crime or offense. With the exceptions stated in 14a, courts-martial do not have jurisdiction to try any offenses not cognizable under the code. Unless the specification of a charge alleges an offense of which a court-martial may take cognizance, a motion to dismiss should be granted as to the specification. If the motion is sustained the court will direct that the specification be stricken and disregarded. c. Statute of limitations. For all but a few crimes or offenses, exemption from liability to be tried by a court-martial or punishment under Article 15 may, with certain limitations, be claimed after two (or three) years. See Article 43 in appendix 2. In the case of any offense the trial of which in time of war is certified to the President by the Secretary of a Department to be detrimental to the prosecution of the war or inimical to the national security, the period of limitation prescribed for the trial of the offense shall be extended t six months after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress (Art. 43e). When the United States is at war, the running of any statute of limitations applicable to certain other offenses under the code shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress. See Article 43f. If, prior to 31 May 1951, the trial or punishment of any crime or offense has been barred by the running of the statute of limitations under the law in effect prior to that date, Article 43 of the code shall not be construed as reviving liability to trial or punishment for such crime or offense. However, if the statute of limitations has not run prior to 31 May 1951, the running of the statute of limitations shall be governed by the provisions of Article 43 of the code. The period of limitation begins to run on the date of the commission of the offense. With respect to liability to trial by court-martial, it ends when sworn charges and specifications are received by any officer exercising summary court-martial jurisdiction over the command which includes the accused. See 33b and Article 24. The termination of the period of limitation may be proved, prima facie, by the signed receipt for the charges and specifications prescribed in 33b. With respect to liability to nonjudicial punishment, the period of limitations ends with the imposition of punishment under Article 15 (Art. 43c). Certain offenses, as, for example, wrongful cohabitation, are continuing offenses, and the accused cannot avail himself of the statute of limitations for any part of continuing offenses not within the bar of the statute of limitations. Absence without leave (Art. 86), desertion (Art. 85), and fraudulent enlistment (Art. 83(1)) are not continuing offenses and are committed, respectively, on the date the person so absents himself, deserts, or first receives pay or allowances under the enlistment. If it appears that the statute of limitations bars trial of an alleged desertion or absence without leave the court may not find by exceptions and substitutions that such desertion or unauthorized absence began at a later time not barred by the statute. However, in cases in which the statute of limitations is not involved, the court may find by exceptions and substitutions that a desertion or unauthorized absence began at a later time than that alleged (but within the period alleged), but such finding by exceptions and substitutions may not increase the amount of punishment that might be adjudged. As to amending charges when appropriate, see 33d. In applying this statue the court will be guided by the crime or offense as described in the specification, and not by the article stated in the charge. Thus, if an offense properly chargeable under Article 121 is erroneously charged under Article 134, the limitation is nevertheless three years rather than two years. If it appears from the charges that the statute has run against an offense or (in the case of a continuing offense) a part of the offense charged, the court will bring the matter to the attention of the accused and advise him of his right to assert the statute unless it otherwise affirmatively appears that the accused is aware of his rights in the premises. See 53h. This action should, as a rule, be taken at the time of arraignment. If the accused pleads guilty to a lesser included offense against which the statute of limitations has apparently run, the court will advise the accused of his right to interpose the statute in bar of trial and punishment as to that offense. See also 74h. The burden is not on the defense to show that neither absence from the territory in which the United States has authority to apprehend him nor other impediment prevents the accused from claiming exemption under Article 43. For example, if it appears from the charges in a peacetime desertion case that more than three years have elapsed between the date of the commission of the offense and the date when sworn charges and specifications were received by an officer exercising summary court-martial jurisdiction over the command which includes the accused, the motion should be sustained unless the prosecution shows by a preponderance of evidence that the statute does not apply because of periods which, under the provisions of Article 43d, are to be excluded in computing the three years. Since the statute of limitations is a matter of defense, it may be waived by the accused provided he is aware of his right to assert it. A plea of guilty, after explanation of its effect with respect to the statute of limitations, operates as such waiver. If an accused pleads guilty to a lesser included offense against which the statute of limitations has run and persists in the plea after the meaning and effect thereof have been explained to him including his right to interpose the statute of limitations as to the lesser included offense, the plea of guilty, as long as it stands, is a waiver of his right to interpose the statute of limitations in bar of punishment. Under these circumstances he may not, after a finding of guilty of such lesser included offense, assert the statute in bar of punishment. It is not imperative that the accused, in order to avail himself of this defense, do so by means of a motion to dismiss. The limitation may equally be taken advantage of under a plea of not guilty by establishing the defense by evidence during the trial. See 67e for an example of a case in which it is appropriate to raise this defense under a plea of not guilty. In such a case, however, the accused must advise the court that he is insisting upon the defense of the statute of limitations under his plea of not guilty, singe failure to assert the defense during the hearing constitutes a waiver (67a). d. Former jeopardy. No person shall be tried a second time for the same offense without his consent (Art. 44a). No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification shall, as to such charge or specification, be held to be a trial in the sense of Article 44 until the finding of guilty has become final after review of the case has been fully completed (Art. 44b). But the disapproval or setting aside of a finding of guilty as to any charge or specification for lack of sufficient evidence in the record to support the findings of guilty is a bar to rehearing upon that charge or specification (Arts. 63a, 66d, 67e). If, subsequent to the introduction of any evidence on the general issue (the issue of guilt or innocence raised by a plea), a proceeding is dismissed or terminated by the convening authority or on motion of the prosecution because of failure of available evidence or witnesses without any fault of the accused, such proceeding shall be a trial in the sense of Article 44 (Art. 44c). The word "terminated" as herein used means a final conclusion of the hearing, and not a mere continuance for the purpose of obtaining additional evidence or for any other purpose. Except as provided in Article 44c, a proceeding is not a trial in the sense of Article 44 if, because of manifest necessity in the interest of justice, it was terminated before findings (55b). A person has not been tried in the sense of Article 44 if the proceedings were void for any reason, such as lack of jurisdiction to try the person or the offense. The same acts constituting a crime against the United States cannot, after acquittal or conviction of the accused in a civil or military court deriving its authority from the United States, be made on the basis of a second trial of the accused for that crime in the same or in another such court without his consent. The civil courts in the Territories and possessions of the United States, as well as the district and other courts of the United States, derive their authority from the United States. The same acts when committed in a State may constitute two distinct offenses, one against the United States and the other against the State. In such a case trial by a State court does not bar trial by court-martial. In general, once a person is tried for an offense in the sense of Article 44, he cannot without his consent be tried for an offense necessarily included therein. When once tried for a lesser offense, an accused cannot be tried for a major offense which differs from the lesser offense in degree only. Thus a trial for manslaughter may be interposed in bar of trial for the same homicide subsequently charged as murder because both offenses involve the same unlawful killing and are distinguished from each other only by the state of mind of the accused. On the other hand, a trial for a homicide is not barred by a former trial for an assault and battery. See 71b, however, for an example of a case when the defense of res judicata may be asserted after acquittal of a lesser included offense. A trial for absence without leave (Art. 86) bars trial for the same absence charged as desertion and vice versa if the same enlistment is involved in both cases, since both offenses involve the same unauthorized absence. But when a person in the military service deserts and reenlists, trial for absence without leave from the second enlistment does not bar trial for desertion from the first enlistment although the same period of time may in part be involved in both cases. Subject to the rules as to documentary evidence including the rules as to the use of copies, former jeopardy by court-martial may be proved in appropriate cases by the order publishing the result of trial. Former jeopardy by civil court may be proved by the indictment and record of conviction or acquittal. When necessary or desirable former jeopardy by any court may be proved by the record of trial by court-martial or civil court. e. Pardon. A pardon is an act of the President which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. A pardon may be interposed in bar of trial by a motion to dismiss. The usual rules as to documentary evidence apply to a written pardon, whether in the nature of an individual pardon or of a general amnesty. If the document is not sufficiently explicit to determine whether the motion should be sustained, the defense may introduce other evidence tending to establish the pardon. f. Constructive condonation of desertion. If an officer exercising general court-martial jurisdiction unconditionally restores a deserter to duty without trial with knowledge of the alleged desertion, this action amounts to a constructive condonation of the desertion and may be interposed in bar of trial subsequently ordered. If an officer exercising general court-martial jurisdiction shall have directed that a deserter be restored to duty but that he remain subject to trial for the offense, such a restoration is not a constructive condonation of the desertion and the individual so restored remains subject to trial. g. Former punishment. Non-judicial punishment previously imposed under Article 15 for a minor offense may be interposed in bar of trial for the same offense. For a definition of "minor offense," see 128b. Such punishment, however, does not bar trial for another crime or offense growing out of the same act or omission. For instance, punishment under Article 15 for the careless discharge of a firearm would not bar trial for involuntary manslaughter if the careless act caused a death. See Article 15e. h. Promised immunity. See 148e (Testimony of accomplices). 69. MOTIONS TO GRANT APPROPRIATE RELIEF-a. General. A motion to grant appropriate relief is one made to cure a defect of form or substance which impedes the accused in properly preparing for trial or conducting his defense. Among the objections which may be raised by such a motion are defects in charges and specifications which do not amount to a failure of the charge to allege an offense (69b), a substantial defect in the conduct of the pretrial investigation (see 34, 69c, Art. 32), prejudicial joinder in a joint trial (69d), and misjoinder in a common trial (33l, 69d). In general these objections are waived if not asserted prior to the entry of a plea, but the court may grant relief from the waiver for good cause (67b). The motion should briefly and clearly set forth the nature of and the grounds for the request, objection, or questions it is intended to make or raise. The motion admits nothing as to either the jurisdiction of the court or the merits of the case. b. Defects in charges and specifications-(1) General. If a specification, although alleging an offense cognizable by courts-martial, is defective in some matters of form as, for example, that it is inartfully drawn, indefinite, redundant, or that it misnames the accused, or is laid under the wrong article, or does not contain sufficient allegations as to time and place, the objection should be raised by motion for appropriate relief. (2) When accused is not misled. If it clearly appears that the accused has not in fact been misled by the form of the charges and specifications, and that a continuance is not necessary for the protection of his substantial rights, the court may proceed immediately with the trial upon directing an appropriate amendment of the defective charge of specification. (3) When accused may be misled. If the specification is defective to the extent that it does not fairly apprise the accused of the particular offense charged, the court, upon the defect being brought to its attention, will, according to the circumstances, direct the specification to be stricken and disregarded, or continue the case to allow the trial counsel to apply to the convening authority for directions as to further proceedings, or permit the specification to be amended so as to cure the defect, and continue the case for such time as in the opinion of the court may suffice to enable the accused properly to prepare his defense in view of the amendment. In determining which of the courses mentioned in the preceding subparagraph is to be followed, the court will exercise its sound discretion in the light of the circumstances of each particular case. The following discussion is intended to provide guidance only and is not to be considered as providing a solution for every case. When a defective specification alleges a relatively minor offense, and there remain before the court one or more specifications alleging serious offenses as to which a delay of the trial might prejudice the interests of the accused or the Government, the court may strike the defective specification and proceed with the trial of the remaining offenses charged. Proper occasions for amending a defective specification and continuing the case may arise when the prosecution is prepared to propose an appropriate amendment which, without changing the nature of the offense charged, supplies sufficient particulars to enable the accused properly to prepare his defense. Whenever the trial counsel is not prepared to propose an appropriate amendment to a defective specification, or when a proposed amendment to such a specification would change the nature of the offense intended to be alleged and when the interests of justice do not require that the defective specification be stricken in order that the trial may proceed with respect to other specifications, the court may continue the case in order to permit the trial counsel to refer the matter to the convening authority. This procedure is also appropriate in any case when the court is in doubt as to the proper relief which should be granted with respect to a defective specification. c. Defects arising out of the pretrial investigation. A substantial failure to comply with the requirements of 34 and Article 32 may be brought to the attention of the court by a motion for appropriate relief. Such a motion should be sustained only if the accused shows that the defect in the conduct of the investigation has in fact prevented him from properly preparing for trial or has otherwise injuriously affected his substantial rights. If the motion is sustained the court may grant a continuance to enable the accused to prepare his defense properly, or may adjourn the proceedings to permit compliance with 34 and Article 32 and report the basis of its action to the convening authority. The latter may, after taking the necessary action to cure the defect, return the record to the court with instructions to proceed with the trial. d. Motion to sever. A motion to sever is a motion by one of two or more co-accused to be tried separately from the other or others. Occasion for the motion may arise in either a joint or a common trial. In a common trial a motion to sever will be liberally considered. It should be granted on the motion of an accused arraigned in a common trial with other accused against whom offenses are charged which are unrelated to those charged against the mover (33l). The motion should be granted in any case if good cause is shown; but when the essence of the offense is a combination between the parties-conspiracy, for instance-the court may properly be more exacting than in other cases as to whether the facts established in support of the motion constitute good cause. The more common grounds for this motion are that the mover desires to use at his trial the testimony of one or more of his co-accused, or the testimony of the wife of one, or that a defense of the other accused is antagonistic to his own, or that evidence as to the other accused will in some manner prejudice his defense. If the motion is granted, the court will first decide which accused it will proceed to try and, in the case of joint charges, direct an appropriate amendment of the charges and specifications. For instance, if after severance the court proceeds with the trial of B in a case in which A and B have been jointly charged with an offense, the specification should be amended to allege, in effect, either that B committed the offense or that B committed the offense in conjunction with A. The amendment should be formally made as a part of the proceedings, no actual alteration being made in the charge sheet itself. For an example see the procedural guide, appendix 8a. When, as a result of action on a motion to sever, trial of one or more accused is deferred, the trial counsel will report the facts at once to the convening authority so that he may take appropriate action to try the deferred accused or to make other disposition of the charges as to such accused. e. Miscellaneous motions for relief. In addition to grounds for motions discussed above in this paragraph (69), there are others which may be made for the purpose of raising a specific objection on the merits prior to trial of the general issue. For examples, see 121 and 122 (Insanity). If a motion amounts in substance to an application for a continuance, or to a challenge, motion to dismiss, or other matter for which a procedure is provided, the motion will be regarded as such application, challenge, motion to dismiss, or other matter. A motion to elect-that is, a motion that the prosecution be required to elect upon which of two or more charges or specifications it will proceed-will not be granted. 70. PLEAS-a. General. In court-martial procedure, please include guilty, not guilty, and pleas corresponding to permissible findings of lesser included offenses. See 74b(3). The court may refuse to accept a plea of guilty and should not accept the plea without first determining that it is made voluntarily with understanding of the nature of the charge. If an accused arraigned before a court-martial makes any irregular pleading, or after a plea of guilty sets up maters inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as through he had pleaded not guilty (Art. 45a). The term "irregular pleading" includes such contradictory pleas as guilty without criminality or guilty to a charge after pleading not guilty to all specifications thereunder. A plea of guilty by the accused shall not be received to any charge or specification alleging an offense for which the death penalty may be adjudged (Art. 45b; see 15a(3)), but a plea of guilty may be received as to a noncapital offense which is necessarily included in a capital offense alleged. Except as to matters covered by a plea of guilty, a plea admits nothing as to the jurisdiction of the court and nothing as to the merits of the case. Any admission or waiver involved in a plea of guilty to any offense has effective existence only as long as the plea stands. A plea of not guilty or guilty will, in the absence of a motion to grant appropriate relief, be regarded as a waiver of any objection which must be raised by such motion before plea, including any objection based on a misnomer of the accused whether under an alias or otherwise. See 67b. By standing mute an accused does not waive any objections otherwise waived by a plea. The accused has a legal and moral right to enter a plea of not guilty even if he knows he is guilty. This is so because his plea of not guilty amounts to nothing more than a statement that he stands upon his right to cast upon the prosecution the burden of proving his alleged guilt. A plea of guilty does not exclude the taking of evidence, and in the event that there be aggravating or extenuating circumstances not clearly shown by the specification and plea, any available and admissible evidence as to such circumstances may be introduced. If a plea of guilty to a lesser included offense is entered the trial counsel shall proceed with the prosecution of the offense charged. b. Procedure if plea of guilty is entered. The following procedure is prescribed for all cases in which a plea of guilty is entered: (1) In general and special courts-martial cases, the plea of guilty will be received only after the accused has had an opportunity to consult with the counsel appointed for or selected by him.. If the accused has refused counsel, the plea should not be received. (2) Before accepting a plea of guilty the meaning and effect thereof will be ex0lained to the accused by the law officer of a general court-martial, or the president of a special court-martial or by summary court-martial unless it otherwise affirmatively appears that the accused understands the meaning and effect thereof. See 53h. Such explanation will include the following- That the plea admits every act or omission alleged and every element of the offense charged (or of the lesser included offense to which it relates) and authorizes conviction of the offense to which the plea relates without further proof; That the maximum punishment authorized for the offense to which the accused has pleaded guilty may be adjudged upon conviction thereof; That unless the accused indicates that he understands the meaning and effect of the plea as explained, the plea of guilty will not be accepted. See appendix 8a for an example of such explanation. (3) The explanation made and the reply of the accused thereto will be set forth verbatim in the record of trial of a general court-martial or of a special court-martial in which a verbatim record is kept. In other records of trial by special court-martial the substance of the explanation and reply will be set forth in the record of trial. In records of trial by summary court-martial, the fact that a plea of guilty was explained will be recorded in the space provided. (4) The question whether the plea will be received will be treated as an interlocutory one. Whenever an accused, in the course of trial following a plea of guilty, makes a statement to the court, in his testimony or otherwise, inconsistent with the plea, the court will make such explanation and statement as the occasion requires. If, after such explanation and statement, it appears to the court that the accused in fact entered the plea improvidently or through lack of understanding of its meaning and effect, or if the accused does not voluntarily withdraw his inconsistent statement, the court will proceed to trial and judgment as if he had pleaded not guilty. See Article 45a. Occasion for making this explanation and statement frequently arises in desertion cases when the accused, after pleading guilty, testifies or states in effect that throughout his unauthorized absence he had the intention of returning. When, after a plea of guilty has been received, the accused asks to be allowed to withdraw it and substitute a plea of not guilty or a plea to a lesser included offense he should be permitted to do so. Whenever a plea of guilty previously entered is set aside the prosecution will be given an opportunity to reopen its case and produce any available evidence which it did not introduce in view of the plea of guilty. One plea may be entered as applicable to all or to certain specified charges and specifications, such as "Not guilty to all charges and specifications." 71. MOTIONS PREDICATED UPON THE EVIDENCE-a. Motion for finding of not guilty. The court on motion of the defense may enter a finding of not guilty as to one or more offenses charged after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a motion for a finding of not guilty at the close of the evidence offered by the prosecution is not granted, the defense may offer evidence without having reserved the right to do so. But if all the evidence in the record whether adduced by the defense or the prosecution, or both, is sufficient to sustain a conviction, such conviction need not be set aside upon review merely because the court erred in denying such motion for a finding of not guilty at the time it was made. The court in its discretion may require that the motion specifically indicate wherein the evidence is legally insufficient. The court will determine the matter as an interlocutory question. See 57 and Article 51b. If there is any substantial evidence which, together with all proper inferences to be drawn therefrom and all applicable presumptions, reasonably tends to establish every essential element of an offense charged or included in any specification to which the motion is directed, the motion will not be granted. The court in its discretion may defer action on any such motion as to any specification and permit or require the trial counsel to reopen the case for the prosecution and to produce any available evidence. If the motion is sustained as to any specification, the ruling amounts to a finding of not guilty of such specification and, when appropriate, of the proper charge. b. Res judicata. The defense of res judicata is based on the rule that any issue of fact or law put in issue and finally determined by a court of competent jurisdiction cannot be disputed between the same parties in a subsequent trial even if the second trial is for another offense. The accused, in a proper case, may assert an issue of fact finally determined by an acquittal as a defense. This, if B has been acquired by a court-martial (or by any court wherein the United States, any of its Territories or possessions, or their political subdivisions, or the District of Columbia was a party) of having committed an assault with a knife upon A, B can assert the acquittal as a defense if, upon the subsequent death of A as a result of the wound inflicted in the assault, B is later tried for murder, although the defense of former jeopardy might not be available to him (68d). A motion raising the defense of res judicata should ordinarily be made after the prosecution has rested its case or later unless it can be shown at an earlier stage of the trial that the issue of fact or law in the case on trial and in the case relied upon to sustain the motion are the same. Proof of the former adjudication may be made by the record of the trial relied upon to sustain the motion. Generally, res judicata will not be asserted by the prosecution in any trial by court-martial. However, with respect to jurisdiction of an offense committed prior to a fraudulent separation in violation of Article 83(2) may be shown by the prosecution as a final adjudication of such fraudulent separation and the accused may not dispute the jurisdiction of the court as to the earlier offense on the ground that his separation from the service was not fraudulent. See Article 3b. Chapter XIII-Matters Related to Findings and Sentence ARGUMENTS-INSTRUCTIONS-FINDINGS-PRESENTENCING PROCEDURE-SENTENCE-CONCLUSION OF THE TRIAL 72. ARGUMENTS-a. General. After both sides have rested, arguments may be made to the court by the trial counsel, the accused, and his counsel. The trial counsel has the right to make the opening argument and, if any argument is made on behalf of the defense, the closing argument. The closing argument of the trial counsel is generally limited to the discussion of propositions or matters argued by the defense. If the trial counsel is permitted by the court to introduce new matter in his closing argument, the defense should be afforded an opportunity to reply thereto, but this will not preclude the trial counsel from presenting a final argument. If the arguments indicate that a plea of guilty was entered improvidently, the court will take appropriate action as indicated in 70. Arguments of counsel may be oral, in writing, or both. See 82b(4) in this connection. b. Content. A reasonable latitude should be allowed counsel in presenting their arguments. Restricting argument, particularly in long and complicated cases, may constitute error; however, the court may in its discretion limit argument when it is trivial or mere repetition. Counsel may make a reasonable comment on the evidence and may draw such inferences from the testimony as will support his theory of the case. The testimony, conduct, motives, and evidence of malice on the part of witnesses may, so far as disclosed by the evidence, be commented upon. It is improper to state in an argument any matter of fact as to which there has been no evidence. A party may, however, argue as though the testimony of his own witnesses conclusively established facts related by them. The prosecution may not comment upon the failure of the accused to take the witness stand; however, if the accused has testified on the merits with respect to an offense charged, and if he fails in such testimony to deny or explain specific facts of an incriminating nature that the evidence of the prosecution tends to establish with respect to that offense, such failure may be commented upon. When an accused is on trial for a number of offenses and has testified to one or more of them only, no comment can be made on his failure to testify as to the others. Refusal of a witness to answer a proper question may be commented upon. As to permissible comments on the fact that one witness testified after hearing another, see 149a (Examination of witnesses). c. Improper argument. Argument should not be interrupted by the other side or by the court unless it becomes improper, in which case it may be appropriate for the court to order that the argument be confined to proper matters, and that any improper part already made be disregarded. 73. INSTRUCTIONS-a. Elements of the offense. After closing arguments have been concluded, the law officer (president of a special court-martial) will instruct the court as to the elements of each offense charged. Information as to the elements of an offense may be obtained from the subparagraphs entitled "Discussion" and "Proof" which appear in the discussion of the punitive article under which the offense is charged. See chapter XXVIII. The instruction may be given in the language of the applicable subparagraph. If there is any doubt as to the elements of a particular offense, the law officer (president of a special court-martial) may call upon the trial counsel to produce any law available on the matter, including information or instructions on the law from the convening authority. b. Charging the court. After instructing the court as to the elements of each offense charged, the law officer (president of a special court-martial) shall, in all cases including those in which a plea of guilty has been entered, charge the court (Art. 51c): (1) That the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt; (2) That in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt shall be resolved in favor of the accused and he shall be acquitted; (3) That if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and (4) That the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the Government. To the foregoing, explanatory matter may, but need not, be added. c. Additional instruction by law officer-(1) General. The law officer is not required to give the court any instructions other than those required by Article 51c (73a, b). However when he deems it necessary or desirable, he may give the court such additional instructions as will assist it in making its findings. For example, he may, in an appropriate case, make a simple and orderly statement of the issues of fact, summarize and comment upon the evidence that tends to support to deny such issues, and discuss the law applicable thereto. The law officer may advise the court as to what offenses, if any, are included in an offense charged and the possible findings the court may make by way of exceptions and substitutions. If the accused has pleaded guilty to an offense and the plea still stands, the law officer should invite the attention of the court to the fact that no further proof of the offense to which the plea relates need be introduced by the prosecution to warrant a finding of guilty of that offense. In this connection, see 70. In summarizing or commenting upon the evidence, the law officer should use the greatest caution to insure that his remarks do not extend beyond an accurate, fair, and dispassionate statement of what the evidence shows, both in behalf of the prosecution and the defense. He should not depart from the role of an impartial judge, or assume the role of a partisan advocate. He should not assume as true the existence or nonexistence of a material fact in issue as to which the evidence is conflicting, as to which there is dispute, or which is not supported by the evidence, and he should make it clear that the members of the court are left free to exercise their independent judgment as to the facts. All additional instructions given by the law officer will be given in open court in the presence of the accused and counsel for both sides. The accused and counsel may not interrupt the law officer while he is instructing the court. (2) Preparing additional instructions. If the law officer deems it necessary or desirable that the court be given additional instructions, he may recess the court so that he may have time to prepare such instructions; he may request counsel for both sides to furnish him with proposed additional instructions as to a particular issue in the case or as to any or all of the offenses charged. Counsel need not submit proposed instructions even when requested to do so by the law officer. Any proposed instructions submitted by counsel will be presented in writing to the law officer and copies will be furnished to the opposing counsel. The law officer may accept, reject, or modify any proposed instruction that is submitted, and may substitute instructions of his own or refuse to give any instructions on a matter included in a proposed instruction submitted by counsel. However, he will cause all proposed instructions to be marked for identification and appended to the record of trial for the consideration of the convening authority. The law officer may permit counsel to present argument upon proposed instructions. The members of the general court-martial will be excluded during the presentation of any argument upon a proposed instruction and, as a general rule, such argument will not be recorded. However, the law officer may direct that any argument, or part thereof, made upon a proposed instruction be recorded, transcribed, marked for identification, and appended to the record of trial for the consideration of the convening authority. 74. FINDINGS-a. General. In addition to such instructions as may be given in open court by the law officer (president of a special court-martial), the court will observe the following rules when it is making its findings: (1) Basis of findings. Only matters properly before the court as a whole may be considered. A member should not, for instance, be influenced by any knowledge of the acts, character, or service of the accused not based on the evidence or other proper matter before the court; by any opinions not properly in evidence; or by motives of partiality, favor, or affection. Matters as to which comment in argument is prohibited cannot be considered. (2) Weighing evidence. In weighing the evidence a member is expected to utilize his common sense and his knowledge of human nature and of the ways of the world. In the light of all the circumstances of the case he should consider the inherent probability or improbability of the evidence, and, with this in mind, he may properly believe one witness and disbelieve several witnesses whose testimony is in conflict with that of the one. In this connection, see 153 (Credibility of witnesses) and 140a (Confessions and admissions). (3) Reasonable doubt. In order to convict of an offense the court must be satisfied beyond a reasonable doubt that the accused is guilty thereof. By "reasonable doubt" is intended not fanciful or ingenious doubt or conjecture but substantial, honest, conscientious doubt suggested by the material evidence, or lack of it, in the case. It is an honest, substantial misgiving, generated by insufficiency of proof of guilt. It is not a captious doubt, nor a doubt suggested by the ingenuity of counsel or court and unwarranted by the testimony; nor a doubt born of a merciful inclination to permit the accused to escape conviction; not a doubt prompted by sympathy for him or those connected with him. The meaning of the rule is that the proof must be such as to exclude not every hypothesis or possibility of innocence but any fair and rational hypothesis except that of guilty; what is required is not an absolute or mathematical certainty but a moral certainty. A court-martial which acquits because, upon the evidence, the accused may possibly be innocent, falls as far short of appreciating the proper amount of proof required in a criminal trial as does a court which convicts on a mere possibility that the accused is guilty. The rule as to reasonable doubt extends to every element of the offense. If, in a trial for desertion with intent to remain away permanently, a reasonable doubt exists as to such intent, the accused cannot properly be convicted as charged although he might be convicted of the lesser included offense of absence without proper authority (app. 12). It is not necessary that each particular fact advanced by the prosecution be proved beyond a reasonable doubt; it is sufficient to warrant conviction if, on the whole evidence, the court is satisfied beyond a reasonable doubt that the accused is guilty. Prima facie proof of an essential element of an offense does not preclude the existence of a reasonable doubt with respect to that element. The court may decide, for instance that the prima facie evidence presented does not outweigh the presumption of innocence. With respect to making and weighing presumptions, see 138a. If a reasonable doubt exists as to the mental responsibility of an accused for an offense charged the accused cannot legally be convicted of that offense. See 120b as to the standard of mental responsibility and 122 as to the burden of proof and presumption of sanity. A reasonable doubt may arise from the insufficiency of circumstantial evidence, and such insufficiency may be with respect either to the evidence of the circumstances themselves or to the strength of the inference drawn from them. When the only competent evidence of the commission of an offense is circumstantial in nature, the inference to be drawn from such evidence must not only prove all the elements of the offense, but must at the same time exclude every reasonable hypothesis of innocence. b. Findings as to the specifications-(1) General. Permissible findings include guilty; not guilty; guilty with exceptions, with or without substitutions, and not guilty of the exceptions and guilty of any substitutions, as stated below. The finding as to a specification should be consistent throughout. A finding of guilty without criminality should not be made. When two or more accused are tried jointly, the findings as to each accused should be stated separately. Any different findings as to two or more joint accused should be consistent with one another. Thus, if A and B are joint accused and the court finds B guilty of the offense charged and finds A not guilty, B should be found guilty by excepting from the specification the name of A and the words in the specification which indicate that the offense was a joint one. (2) Exceptions and substitutions. One or more words or figures may be excepted and when necessary, others substituted, provided the facts as so found constitute an offense by an accused which is punishable by the court, and provided that such action does not change the nature or identify of any offense charged in the specification or increase the amount of punishment that might be imposed for any such offense. The substitution of a new date or place may, but does not necessarily, change the nature or identify of an offense. For action to be taken when the evidence indicates an offense not charged, see 55. (3) Lesser included offenses. If the evidence fails to prove the offense charged but does prove the commission of an offense necessarily included in that charged or of an attempt to commit the offense charged or of an offense necessarily included therein, the court may be its findings except appropriate words and figures of the specification and, if necessary substitute others, finding the accused not guilty of the excepted matter but guilty of the substituted matter. For a discussion of included offenses, see 158; for a discussion of attempts, see 159. A table listing some commonly included offenses appears in appendix 12. (4) Offenses arising out of the same act or transaction. The accused may be found guilty of two or more offenses arising out of the same act or transaction, without regard to whether the offenses are separate. In this connection, however, see 76a(8). c. Findings as to the charges. Permissible findings include guilty; not guilty; not guilty, but guilty of a violation of Article -----. An attempt should be found as a violation of Article 80 unless the attempt is include in the express terms of some other article. For examples see Articles 85, 94, 100, 104, and 128. The finding as to a charge should not be inconsistent with, but should support, the findings as to the specifications thereunder. Thus, if two specifications of desertion are under one charge and the accused is found guilty of the first specification, but guilty of absence without leave only as to the second specification, the finding as to the charge should be: Of the Charge: As to Specification 1: Guilty. As to Specification 2: Not guilty, but guilty of a violation of Article 86. A finding of guilty of one specification appropriate to its charge requires a finding of guilty of the charge, but a finding of not guilty of another such specification under that charge does not require any finding of the charge as to it. Thus, upon finding an accused guilty of one of the two specifications under a proper charge, and not guilty of the other, the finding as to the charge should be simply guilty. A court may not find an offense as a violation of an article under which it was not charged solely for the purpose of increasing the authorized punishment or for the purpose of adjudging less than the prescribed mandatory punishment. d. Procedure-(1) General. After the law officer (president of a special court-martial) has instructed the court as prescribed in 73, the court will close to deliberate and vote on the findings. Only the members of the court will be present. Deliberation may properly include full and free discussion as to the merits of the case. The influence of superiority in rank shall not be employed in any manner in an attempt to control the independence of members in the exercise of their judgment. (2) Voting. Voting is by secret written ballot (Art. 51a) and is obligatory. The order in which the several charges and specifications are to be voted upon will ordinarily be determined by the president, subject to the objection of a majority of the court, except that all the specifications under a charge shall precede that charge. The members normally vote upon a specification or charge by marking on their ballots: "Guilty;" "Not guilty;" or "Not guilty, but guilty of -----." The junior member of the court shall in each case count the votes; the count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court (Art. 51a). (3) Number of votes required. No person shall be convicted of an offense for which the death penalty is made mandatory by law (i.e., Art. 106), except by the concurrence of all the members of the court-martial present at the time the vote is taken. No person shall be convicted of any other offense, except by the concurrence of two-thirds of the members present at the time the vote is taken (Art. 52). If, in computing the number of votes required, a fraction results, such fraction will be counted as one; thus, if five members are to vote, a requirement that two-thirds concur is not met unless four concur. A finding of not guilty results as to any specification or charge if no other valid finding is reached thereon; however, a court may reconsider any finding before the same is formally announced in open court. The court may also reconsider any finding of guilty on its own motion at any time before it has first announced the sentence in the case. e. Requesting additional instructions. If, during its deliberation on the findings, a general court-martial is in doubt as to the applicability of the law or the effect of certain evidence in a case, such as whether it may make a finding of guilty of a specification by substitutions and exceptions, or whether there is any lesser included offense of which it may find the accused guilty, it may open and request additional instructions from the law officer. Such instructions will be given in open court in the presence of the accused and counsel for both sides and will be made a part of the record. If a special court-martial desires additional information on the subjects mentioned in the above subparagraph, it may open and requires counsel for both sides to present legal authorities on the question, or it may direct the trial counsel to obtain such information from the convening authority. The proceedings, including any information that is given the court by the trial counsel pursuant to such direction, will be in open court in the presence of the accused and his counsel and will be made a part of the record. f. Form of the findings-(1) General court-martial. After a general court-martial has finally voted on the findings, it may request the law officer and the reporter to appear before it to put the findings in proper form, and such proceedings shall be made a part of the record. See Article 39. The president shall speak for the court in discussing the findings with the law officer and he shall be careful not to disclose the vote of any particular member of the court; he may, however, indicate whether a finding was concurred in by two-thirds or all of the members, as the case may be. See Article 52a in this connection. (2) Special court-martial. A special court-martial puts its findings in proper form in closed session, following the forms indicated in appendix 8a and the instructions contained in 74b and c. (3) Reasons for findings. No finding should include any indication of the reasons for making it. For the information of the convening authority-but not as part of a finding-in its discretion the court may formulate for inclusion in the record a statement of the reasons which led to a finding and a statement of the weight given to certain evidence. Proper occasions for such action may arise, for example, when the court finds an accused not guilty because of a reasonable doubt as to his sanity, or because of the operation of the statute of limitations. See 122c and 68c, respectively. g. Announcing the findings. As soon as a court-martial has determined the findings in a case, it will announce them in open court in the presence of the law officer, counsel, and the accused. Only the required percentage of members who concurred in findings of guilty should be announced. h. Statute of limitations. If by exceptions and substitutions an accused is found guilty of a lesser included offense to which he has not entered a plea, and against which it appears that the statute of limitations (Art. 43) has run, the law officer (president of a special court-martial) will as soon as such a finding is announced, advise him in open court of his right to avail himself of the statute in bar of punishment. If an accused interposes the statute in bar of punishment, the issue will be determined in substantially the same manner as a motion to dismiss on the grounds of the statute of limitations (68c). However, if an accused pleaded guilty to a lesser included offense and persisted in his plea after the meaning and effect thereof had been explained to him, including his right to interpose the statute of limitations as to the lesser included offense, he is deemed to have waived the right to interpose the statute of limitations in bar of punishment for such offense as long as his plea of guilty stands. Under these circumstances an accused may not, after a finding of guilty of such lesser included offense, assert the statute in bar of punishment. 75. PRESENTENCING PROCEDURE-a. General. After the court has announced findings of guilty, the prosecution and defense may present appropriate matter to aid the court in determining the kind and amount of punishment to be imposed. Matter which is presented to the court after findings of guilty have been announced may not be considered as evidence against the accused in determining the legal sufficiency of such findings of guilty upon review. If any matter inconsistent with a plea of guilty is received, or if it appears from any matter received that a plea of guilty was entered improvidently, the court should take the action outlined in 70. b. Matter presented by the prosecution-(1) Data as to service. The trial counsel will read to the court from the first page of the charge sheet the data as to the age, pay, and service of the accused, and the duration and nature of any restraint imposed prior to trial. If the defense objects to such data as being inaccurate or incomplete in a specified material particular or as containing certain specified objectionable matter, the court shall determine the issue. Objections not asserted may be regarded as waived. (2) Evidence of previous convictions. The trial counsel will next introduce evidence of any previous convictions of the accused by courts-martial. Such evidence is not limited to offenses similar to the one of which the accused stands convicted. The evidence must, however, relate to offenses committed during a current enlistment, voluntary extension of enlistment, appointment, or other engagement or obligation for service of the accused, and during the three years next preceding the commission of any offense of which the accused stands convicted. When the last enlistment, appointment, or other engagement or obligation for service was terminated under other than honorable conditions, or when the accused deserted and subsequently fraudulently enlisted, all convictions by courts-martial of offenses committed in the prior term of service, if within the three-year period are admissible, even though such prior term of service was in an armed force other than the one in which he is serving at the time of trial. In computing the three-year period, periods of unauthorized absence as shown by the findings in the case or by the evidence of previous convictions should be excluded. For the purpose of determining the admissibility of previous convictions, retention of an accused beyond the normal expiration date of his term of service by operation of law shall not be deemed to create a new enlistment, a voluntary extension of enlistment, a new appointment, or other new engagement or obligation for service. Unless the accused has been tried for an offense within the meaning of Article 44b, evidence as to the offense is not admissible as evidence of a previous conviction. See 68d (Former jeopardy). Subject to the rules as to documentary evidence, including the rules as to the use of copies, previous convictions may be proved by the order publishing the result of trial. Ordinarily, however, they are proved by the service record of the accused or an admissible copy or extract copy thereof. In the absence of objection, an offense may be regarded as having been committed during the prescribed three-year period unless the contrary appears. If the defense objects, the court shall determine the issue. (3) Matter showing aggravation of an offense to which a plea of guilty has been entered. If a finding of guilty of an offense is based upon a plea of guilty and available and admissible evidence as to any aggravating circumstances was not introduced before the findings, the prosecution may introduce such evidence after the findings are announced. See 70 in this connection. c. Matter presented by the defense-(1) General. Whether or not it introduced evidence on the issue of guilt or innocence, the defense may, after findings of guilty are announced and before the court closes to vote on the sentence, introduce matter in extenuation or mitigation. With respect to matter in extenuation and mitigation offered by the defense, the court may relax the rules of evidence to the extent of receiving affidavits, certificates of military and civil officers, and other writings of similar apparent authenticity and reliability. See 137 and 146b in this connection. (2) Statement of accused. Whether or not he testified on the issue of guilt or innocence or as to matters in extenuation or mitigation, the accused may make an unsworn statement to the court in mitigation or extenuation of the offenses of which he stands convicted, but the right to make such an unsworn statement does not permit the filing of the affidavit of the accused. This unsworn statement is not evidence, and the accused cannot be cross-examined upon it, but the prosecution may rebut statements of fact therein by evidence. The statement may be oral or in writing, or both. It may be made by the accused, by counsel, or by both. The statement should not include what is properly argument, but ordinarily the court will not stop a statement on that ground if it is being made orally and personally by the accused. (3) Matter in extenuation. Matter in extenuation of an offense serves to explain the circumstances surrounding the commission of the offense, including the reasons that actuated the accused but not extending to a legal justification. In this connection, see the illustration in the second subparagraph of 139b. (4) Matter in mitigation. Matter in mitigation has for its purpose the lessening of the punishment to be assigned by the court or the furnishing of grounds for a recommendation for clemency. The fact that non-judicial punishment under Article 15 has been imposed and enforced against the accused may be shown by the accused as a factor in mitigation upon trial for an offense growing out of the same act or omission for which such punishment was imposed and enforced. See 68g. Such matter may include particular acts of good conduct or bravery. It may exhibit the reputation or record of the accused in the service for efficiency, fidelity, subordination, temperance, courage, or any other traits that go to make a good officer or enlisted person. For example the accused may introduce evidence of the character given him on any former discharge from the military service, subject to the right of the prosecution to introduce in rebuttal evidence of the character given the accused on other discharges from the service. d. Rebuttal evidence. After matter in aggravation, extenuation, or mitigation has been introduced the prosecution or defense has the right to cross-examine any witnesses and to offer evidence in rebuttal. 76. SENTENCE-a. Basis for determining. In determining the kind and amount of punishment to be imposed the court should consider the following matters: (1) Except for an offense for which a mandatory punishment is prescribed, the determination of a proper punishment for an offense rests within the discretion of the court subject to the limitations prescribed in chapter XXV and by the article violated. See particularly the Table of Maximum Punishments (127c). To the extent that punishment is discretionary, the sentence should provide a legal, appropriate, and adequate punishment. In this connection see 33h. (2) When applicable, the Table of Maximum Punishments prescribes the maximum limits authorized for each offense listed therein. Normally the maximum punishment will be reserved for an offense which is aggravated by the circumstances, or after conviction of which there is received by the court evidence of previous convictions of similar or greater gravity. HARRY S. TRUMAN THE WHITE HOUSE, February 8, 1951