QUALIFICATIONS OF MEMBERS

Selection of members-The CA has the ultimate legal responsibility to select the court members. This responsibility cannot be delegated. The CA may choose from lists of members suggested by subordinates, but the final decision is his or hers. A CA appoints, as members, those personnel who, in his or her judgment, are best qualified by reason of age, education, training, experience, length of serivce, and judicial temperament. These factors, of course, vary with individuals and do not necessarily depend on the grade of the particular person. No person in arrest or confinement is eligible to be a court member. Similarly, no person who is an accuser, witness for the prosecution, or has acted as investigative officer or counsel in a given case is eligible to serve as a member for that case.

Commissioned officers-The members of an SPCM must, as a general rule, be commissioned officers. When the accused is an enlisted service member, noncommissioned warrant officers are eligible to be court members. No member of the court should be junior in grade to the accused if it can be avoided. Members of an armed force other than that of the accused may be used, but at least a majority of the members should be of the same armed force as the accused.

Enlisted members-An enlisted accused has a right to be tried by a court consisting of at least one-third enlisted members. The accused desiring enlisted membership submits a personally signed request before the conclusion of any Article 39(a), UCMJ, session (pretrial hearing), or before the assembly of the court at trial, or makes the request orally on the record. Only enlisted persons who are not of the same unit as the accused can lawfully be assigned to the court. Unit means company, squadron, battery, ship, or similar sized element,

If, when requested, enlisted members cannot be detailed to the court, the CA may direct the original court to proceed with the trial. Such actions should only be taken when enlisted service members cannot be assigned because of extraordinary circumstances. In such a case, the CA sends to the TC for attachment to the record of trial, a detailed explanation of the extraordinary circumstances and why the trial must proceed without enlisted members.

QUALIFICATIONS OF THE MILITARY JUDGE

The military judge of an SPCM must be a commissioned officer, a member of the bar of the highest court of any state or the bar of a federal court, and certified by the Judge Advocate General as qualified to be a military judge. A military judge qualified to act on GCM cases can also act on SPCM cases.

QUALIFICATIONS OF COUNSEL

Articles 19 and 38, UCMJ, describe the accused's right to counsel at SPCMs. Article 27, UCMJ, sets forth the qualifications for counsel.

Trial Counsel

The TC in military criminal law serves as the prosecutor. For an SPCM, the TC need only be a commissioned officer.

Defense Counsel

There are various types of defense counsel (DC) in military practice. The detailed DC is the DC initially assigned to the case. Individual counsel is a counsel requested by the accused and can be a civilian or military lawyer.

DETAILED DEFENSE COUNSEL.- Article 27(c), UCMJ, describes the qualifications for detailed DCs at SPCMs. An Article 27(b) DC is detailed at no cost to the accused unless, due to military exigencies or physical conditions, one cannot be obtained.

The protection given to an accused by Article 27(c) is expanded in that it requires Article 27(b) counsel to be detailed as detailed DCs in SPCMs.

INDIVIDUAL COUNSEL.- The term individual counsel is used to refer to a counsel specifically requested by an accused. Such counsel may be military or civilian.

CIVILIAN COUNSEL.- At any SPCM, the accused has the right to be represented by civilian counsel provided by him or her at his or her own expense. When the accused retains such counsel, the detailed DC remains to assist the individual counsel unless expressly excused by the accused. The accused is entitled to a reasonable delay before trial for the purpose of obtaining and consulting with civilian individual counsel.

INDIVIDUAL MILITARY COUNSEL.- At an SPCM, the accused has the right to be represented by a military counsel of his or her own choice at no cost to the accused if such counsel is reasonably available.

No Defense Counsel

An accused has the right to represent himself ^or herself at an SPCM without assistance of counsel.

REFERRAL OF CHARGES

The process of referring a given case to trial by SPCM is essentially the same as that for referral to an SCM. Thus, the principles that apply to the preliminary inquiry, preferral of charges, informing the accused, and receipt of sworn charges also apply to the SPCM. As far as the referral process is concerned, the only essential difference between the referral of an SCM and an SPCM is the information contained in block 14 on page 2 of the charge sheet.

Referral to Trial

If, after reviewing the applicable evidence, the CA determines that trial by SPCM is warranted, he or she executes Part V of the charge sheet in the proper manner. In addition to the command data entered on the appropriate lines of block 14, the CA indicates the type of court-martial to which the case is being referred, the particular SPCM to which the case is assigned, and any special instructions. Block 14 is then personally signed by the CA or by his or her personal order reflecting the signer's authority. It might serve well to recall that a clear and concise serial system is essential to proper referral. The referral should identify a particular court to hear the case; that is, it should relate to a specific convening order. Take, care in preparing convening orders and referral blocks to avoid confusion and legal complications at the trial.