THE HEARING PROCEDURE

Captain's mast is held at the time and place decided on by the CO. The XO, legal officer, or discipline officer normally assists the CO. Additionally, a master-at-arms will be present to keep order and call the accused to mast. Your function will be to have the service record of the accused and other associated documents available for the CO.

While local practices will come into play as far as setting up the mast and the formalities required, appendix A-1-e of the JAGMAN, figure 5-7, is the official guide for the NJP proceedings.

HEARING REQUIREMENTS

Except as noted in the following paragraph, NJP cases must be handled at a hearing whereby the accused is allowed to exercise the foregoing rights. In addition, there are other technical requirements about the hearing and the exercise of the accused's rights.

Figure 5-7.-Captain's mast guide.

Figure 5-7.-Captain's mast guide-Continued.

Personal Appearance Waived

Part V, par. 4c(2), MCM, 1984, provides that if the accused waives his or her right to appear personally before the CO, he or she may submit written matters for consideration by the CO before the imposition of NJP. If the accused makes this election, inform the accused of his or her right to remain silent and that any matters submitted may be used against him or her at a trial by court-martial.

Notwithstanding the accused's expressed desire to waive his or her right to appear personally at the NJP hearing, he or she maybe ordered to attend the hearing if the officer imposing NJP desires his or her presence. If the accused waives his or her personal appearance and NJP is imposed, the CO must make sure the accused is informed of the punishment as soon as possible.

Hearing Officer

Normally, the officer who actually holds the NJP hearing is the CO of the accused. COs or OICs are allowed to delegate their authority to hold the hearing to another officer under extraordinary circumstances. These circumstances must be unusual and significant rather than matters of convenience to the commander. This delegation of authority should be in writing and the reasons for it detailed. This delegation, however, does not include the authority to impose punishment. At such a hearing, the officer delegated to hold the hearing will receive all evidence, prepare a summarized record of matters considered, and send the record to the officer having NJP authority.

Burden of Proof

The CO must decide that the accused is guilty by a preponderance of the evidence. Black's Law Dictionary defines preponderance of evidence as "evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it . . . ."

Personal Representative

The burden of getting a representative is on the accused. As a practical matter, the accused is free to choose anyone he or she wants-a lawyer or a nonlawyer, an officer or an enlisted person. This freedom of the accused to choose a representative does not compel the command to provide lawyer counsel, and current regulations do not create a right to lawyer counsel at NJP where such a right exists at court-martial.

Representation by any lawyer who is willing and able to appear at the hearing is available to the accused. While a lawyer's workload may prevent the lawyer from appearing, a blanket rule that no lawyers will be available to appear at Article 15 hearings would appear to contravene the spirit if not the letter of the law. It is likewise doubtful that a lawyer can lawfully be ordered to represent the accused. It is fair to say that the accused can have anyone who is able and willing to appear on his or her behalf without cost to the government. While a command does not have to provide a personal representative, it should help the accused get the representative he or she wants. In this connection, if the accused desires a personal representative, allow him or her a reasonable time to get someone. Use good judgment here, for such a period should be neither too short nor too long.

Witnesses

When the hearing involves controverted questions of fact about the alleged offenses, witnesses should be available to testify if they are present on the same ship or base or are otherwise available at no expense to the government. Thus, in a larceny case, if the accused denies that he or she took the money, the witnesses who can testify that the accused did take the money should be called to testify in person if they are available at no cost to the government. It should be noted, however, that no authority exists to subpoena civilian witnesses for an NJP proceeding.