NOT GUILTY PLEAS.- When not guilty pleas are entered by the court or accused, the trial proceeds to the presentation of evidence-first by the prosecutor and then by the defense.

GUILTY PLEAS.- Where guilty pleas are entered or the accused pleads guilty to a lesser included offense, the judge determines that such pleas are made knowingly and voluntarily and that the accused understands the meaning and effect of such pleas. This process is known as providency. The military judge advises the accused (1) of the maximum sentence that can be imposed in his or her case; (2) that a plea of guilty is the strongest form of proof known to the law; and (3) that by pleading guilty the accused is giving up the right to a trial of the facts, the right against self-incrimination, and the right to confront and to cross-examine the witness against him or her. In addition, the judge explores the facts thoroughly with the accused to obtain from the accused an admission of guilt-in-fact to each element of the offense(s) to which the pleas relate.

CONDITIONAL PLEAS.- With the approval of the military judge and the consent of the TC, an accused may enter a conditional plea of guilty. The main purpose of such a conditional plea is to preserve for appellate review certain adverse determinations that the military judge may make against the accused regarding pretrial motions. If the accused prevails on appeal, his or her conditional plea of guilty may then be withdrawn.

Assembly of the Court

After the accused enters pleas, the military judge assembles the court. This is done by bringing the members into the courtroom if it is a member's trial. The military judge announces that all parties are present and the members are sworn. The court is then assembled, After assembly the military judge may give preliminary instructions to the members. Any witnesses that are expected to be called to testify are asked to withdraw from the courtroom. The TC restates the general nature of the charges in the case for the benefit of the members.

Challenge Procedure

Where the court is composed of members, the next stage will involve a determination of the eligibility of court members to participate in the trial. Members may be asked questions individually or collectively. This procedure is called voir dire. This procedure determines whether or not a member is suitable to sit as a member of the court-martial.

Mechanically, both the TC and DC are given an opportunity to question each member to see if a ground for challenge exists. In this connection, there are two types of challenges-challenges for cause and peremptory challenges. A challenge, if sustained by the judge who rules upon it, excuses the challenged member from further participation in the trial. The law places no limit on the number of challenges for cause that can be made at a trial. A peremptory challenge is a challenge that can be made for any reason. The TC and accused are entitled to one peremptory challenge.

Case on the Merits

At this point the military judge announces to the members the plea(s) of the accused. The TC and DC may make one opening statement to the court before the presentation of evidence begins. The defense may elect to make its opening statement after the prosecution has rested and before the presentation of evidence for the defense. After opening statements are made, the prosecution commences presenting his or her case-in-chief. Each party has full opportunity to present evidence. Ordinarily the following sequence is used:

l Presentation of evidence for the prosecution

l Presentation of evidence for the defense

l Presentation of prosecution evidence in rebuttal

l Presentation of defense evidence in surrebuttal

l Additional rebuttal evidence in the discretion of the military judge

l Presentation of evidence requested by the military judge or members

The testimony of witnesses is taken orally in open session. Each witness must testify under oath. After the witness is sworn he or she is identified for the record. The party calling the witness conducts direct examination of the witness, followed by cross-examination of the witness by the opposing party. Redirect and recross-examinations are conducted as necessary followed by any questions by the military judge or members. All documentary and real evidence is marked and introduced into evidence.

Argument on Findings and Findings

After all evidence has been presented, the TC makes argument on findings. Following the TC's argument, the DC presents argument. In this stage the TC is allowed to make another argument, rebutting anything that was brought up by the DC. After all arguments are complete and if the trial is composed of members, the military judge instructs the members on findings. The members withdraw from the courtroom for deliberation on findings.

If the court is composed of members, the president of the court will announce the findings. If no members, the judge announces findings. At an SPCM, two-thirds of the members present at trial must agree on each finding of guilty. In computing the necessary number of votes to convict, a resulting fraction is counted as one. Thus, on a court of five members, the number of voters required to convict is three and one-third or, applying the rule, four votes. In a trial by military judge alone, the required number of votes is one-the judge's.

Presentencing Procedure

After findings of guilty have been announced, the prosecution and defense may present matters to aid the court-martial in determining an appropriate sentence. Such matters are ordinarily presented by the TC in the following sequence:

l Service record data relating to the accused taken from the charge sheet

l Personal data relating to the accused and of the character of the accused's prior service as taken from the service record

l Evidence of prior convictions, military or civilian

l Evidence of rehabilitative potential

Extenuation and Mitigation

The defense may present matters in rebuttal of any material presented by the prosecution and may present matters in extenuation and mitigation. Matter in extenuation of an offense serves to explain the circumstances surrounding the commission of an offense, including those reasons for committing the offense that do not constitute a legal justification or excuse. Matter in mitigation of an offense is introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency.

The accused may testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution, or for all three purposes. The accused may limit such testimony or statement to any one or more of the specifications of which the accused has been found guilty.