CONSTITUTION OF THE COURT

In order for a court-martial to properly try a case, it must have strict constitution. That is, it must have jurisdiction over the offense, the defendant, and a proper convening authority. A deficiency in any of these requisites makes the court powerless to adjudicate a case lawfully. The rules relating to constitution of the court must therefore be carefully observed.

QUALIFICATIONS OF MEMBERS

The convening authority has the untimate legal responsibility to select the court members; that authority cannot be delegated. The convening authority appoints as members only those personnel who, in his or her judgment, are best qualified by reason of age, education, training, experience, length of service, 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 arrestor 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. Although the convening authority may choose from lists suggested by subordinates, the final decision on members of a court rests with the office of the convening authority.

Commissioned Officers

The members of a special court-martial 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 must ask for enlisted membership by a personally signed request either before the conclusion of a pretrial hearing (Article 39a, UCMJ), or before the assembly of the court at trial, or make the request orally on the record. Enlisted persons assigned to the same unit as the accused may not serve on the court. Only those enlisted members assigned to other units may lawfully serve on the court. "Unit" means company, squadron, battery, ship, or similar sized element.

If enlisted members cannot be found to serve, the convening authority may direct the court to proceed with trial, Such actions should only be taken when enlisted service members cannot be assigned because of extraordinary circumstances. In such a case, the convening authority forwards to counsel a detailed explanation of the circumstances, and why the trial must proceed without enlisted members.

QUALIFICATIONS OF THE MILITARY JUDGE

The military judge of a special court-martial must be a commissioned officer, a member of the bar of a Federal court, or the highest court of any state, and certified by the Judge Advocate General as qualified to be a military judge. A military judge qualified to act on general court-martial cases can also act in special court-martial cases.

REFERRAL OF CHARGES

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

Referral to Trial

If, after reviewing the applicable evidence, and the convening authority determines that trial by special court-martial is warranted, he or she executes Section V of the charge sheet. In addition to the command data entered on the appropriate lines of Block 14, the convening authority indicates the type of courtmartial, the court-martial assignment, and any special instructions. Block 14 is then personally signed by the convening authority or by 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. Care should be taken in ^preparing convening orders and referral blocks ^{to avoid} confusion and legal complications at trial.

Withdrawal of Charges

Withdrawal of charges is a process in ^{which the} convening authority removes a court-martial case previously referred to it for trial. The convening authority cannot withdraw charges from one court and refer them to another without reason. These reasons are articulated in writing by the convening authority and included in the record of trial when the case is tried by the second court. The convening authority may withdraw charges for the purpose of dismissing them for any reason deemed sufficient. The withdrawal is accomplished by drawing a diagonal line across the referral block on page 2 of the charge sheet and having the convening authority initial the line-out. It is also advisable to write "withdrawn" across the endorsement and to date the action.

DISESTABLISHMENT OF THE COURT.-

Perhaps the most frequent withdrawal problem is presented when the convening authority wants to disestablish the court and create another to take its place. This usually happens when several members have been transferred or when the particular court has been in existence for a long time and the convening authority wants to relieve the court. Such grounds are valid and constitute a "proper reason." However, if evidence shows that a change was made because a convening authority was displeased with the leniency of a sentence or the number of acquittals, then the withdrawal would not be lawful. Whenever a new court relieves an old one, it creates a problem with respect to those cases previously referred to the old court and those now being referred to the new court. Remember, only the court to which a case is specifically referred can try it. The convening authority should withdraw each case from the old court (by lining out the referral block) and then referring the case to the new court. This action is accomplished by executing a new Block 14 referral on the charge sheet, indicating the serial number and date of the convening order that appoints the new court. The new referral should be taped (at the top) over the old lined-out referral to allow inspection of both referrals.

CHANGE IN COURT: NO DISESTABLISH-MENT.- Sometimes a convening authority may have good cause for withdrawing a case from a court but has no intention of disestablishing that court. For instance, one of several court panels may be backlogged, and the convening authority may wish to redistribute the pending cases. This action is accomplished by lining out and initialing the old referral block on the charge sheet and executing anew Block 14, referring the case to a new court. Again, the new Block 14 is taped over the old one to allow inspection of both referrals.

Amendment of Charges

In some instances, an amendment to charges will necessitate further administrative action with respect to the charge sheet. Minor changes in the form of correction of typographical errors normally will require no more administrative action than lining out and initialing the erroneous data and substituting the correct data. If, on the other hand, the contemplated change involves any new person, offense, or matter not fairly included in the charges as originally preferred, the amended specification must go through the preferral-referral process or the accused can exercise his or her right to object to trial on the unsworn charges.

Additional Charges

If, while awaiting trial on certain charges, an accused commits new offenses or if other previously-unknown offenses are discovered, an entirely new charge sheet must be prepared. Using the Special Instructions section of the Referral block, the convening authority states that the additional charges are to be tried together with the charges originally referred to the court-martial.

SPECIAL COURT-MARTIAL: TRIAL PROCEEDINGS

It is not necessary that you have a complete understanding of the many and complex rules and procedures of the special court-martial. It is essential, however, that you have a general knowledge of the mechanics of the trial process. Although an infinite number of variations may exist in any particular case, the general arrangement includes service of charges, pretrial hearings, preliminary matters, arraignment, motions, and pleas.

Service of Charges

In times of peace, no person can be brought to trial in any special court-martial until 3 days after formal charges have been served. In computing the 3-day period, you may not count the date of service or the date of trial. Sundays and holidays do count, however, in computing the statutory period. If the accused is served on Wednesday, he or she could not be tried before Sunday, and, as a practical matter, not before Monday. An accused can lawfully object to participating in trial proceedings before the 3-day waiting period has expired. The accused may, however, waive the 3-day period, so long as he or she understands the right and voluntarily agrees to go to trial earlier. At U.S. shore establishments, trials normally do not occur on the weekends. However, when ships are at sea or in overseas ports, trial is possible at any time, any day of the week.

The date charges are served upon the accused is reflected by the certificate in Block 15 of page 2 of the charge sheet. The trial counsel normally executes this certificate when he or she personally presents a copy to the accused. The trial counsel must personally serve the accused, even though the accused may have been previously informed of the charges. The service of the charge sheet may also be accomplished by the command at any time after referral as long as the accused is served personally.

Pretrial Hearings

After the 3-day period has elapsed, the military judge may hold sessions of court without members to litigate motions, objections, and other matters not amounting to a trial of the accused's guilt or innocence. The accused may be arraigned and his pleas taken and determined at such a hearing. At such hearings, the judge, trial counsel, defense counsel, accused, and a reporter will be present. Several such hearings may be held if desired. These hearings are commonly referred to as Article 39(a) sessions.

Preliminary Matters

At the initial pretrial hearing, the first order of business is to incorporate into the record those documents relating to the convening of the court and referral of the case for trial. Also, all oaths are administered. The convening order, the charge sheet, and any amendments to either document become matters of record at this point in the proceedings.

In addition, an accounting is made of all personnel required to be present. This accounting includes all persons named in the convening order, the counsel, the reporter, and the military judge. Also, all personnel qualifications are checked for the record.

The Arraignment

The arraignment is the reading of charges to the accused and asking for the accused's plea. The arraignment is complete when the accused is asked to enter his or her plea. This stage is an important one in the trial. After arraignment, if the accused voluntarily absents himself or herself without authority or does not appear during court sessions, he or she may nevertheless be tried and, if the evidence warrants, convicted. The arraignment is also the cut-off point for adding charges to the trial. After arraignment, no new charges can be added without the consent of the accused.

Motions

At arraignment, the military judge advises the accused that pleas are about to be requested and that if any motions are to be made, they should be presented. Many times motions such as attacking jurisdiction, sufficiency of charges, illegal pretrial confinement, and speedy trial will have already been litigated at a pretrial hearing. Nevertheless, the accused may decide to make additional motions and is allowed to do so. If there are motions, they are litigated at this time. If there are no motions, the trial proceeds.

Pleas

The responses of the accused to each specification and charge are known as the pleas. The recognized pleas in military practice are guilty, not guilty, guilty of a lesser included offense, and under some circumstances, a conditional plea of guilty. Any other pleas (such as nolo contendere) are improper, and the military judge enters a plea of not guilty.

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

GUILTY PLEAS.- When guilty pleas are entered or when the accused pleads guilty of 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 providence. 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 witnesses. In addition, the judge explores the facts thoroughly with the accused to obtain an admission of guilt-in-fact to each element of the offense (or offenses) to which the pleas relate.

CONDITIONAL PLEAS.- With the approval of the military judge and the consent of the trial counsel, an accused may enter a conditional plea of guilty. The main purpose of a conditional plea is to preserve for appellate review certain adverse determinations which 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. The members enter the courtroom and 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 who are expected to be called are asked to leave the courtroom. The trial counsel restates the general nature of the charges in the case for the benefit of the members.

Challenge Procedure

When 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.

Both trial and defense counsel is given an opportunity to question each member to see if grounds for a challenge exists. In this connection, there are two types of challenges: (1) challenges for cause, and (2) peremptory challenges. A challenge, if sustained by the judge, excuses the member from the trial. The law places no limit on the number of challenges for cause that can be made at trial, but the trial counsel and counsel for the defense are each limited to only one peremptory challenge. A peremptory challenge is challenge that can be made for any reason.

Case on the Merits

At this point the military judge announces the plea of the accused. The trial counsel and defense counsel make an opening statement to the court before the presentation of evidence begins. 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 

. Presentation of evidence for the defense 

l Presentation of prosecution evidence in rebuttal 

. Presentation of defense evidence in surrebuttal 

l Additional rebuttal evidence at the discretion of the military judge . Presentation of evidence requested by the military judge or members

A trial does not have to follow that order of events. For example, the defense may elect to make its opening statement and present evidence for the defense after the prosecution has rested.

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 questioning by the military judge or members. All documentary and real evidence is marked and introduced into evidence.

Arguments on Findings

After all evidence has been presented, the trial counsel makes arguments on findings. The trial counsel presents argument, followed by the defense counsel. In this stage the trial counsel is allowed to make another argument, rebutting anything that was brought up by the defense counsel. After all arguments are complete, the military judge instructs the members on findings. The members then withdraw from the courtroom for deliberation.

If the court is composed of members, the president of the court will announce the findings. When there are no members, the judge announces findings. At a special court-martial, 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 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.