Chapter IX.
Courts-Martial--Personnel

(Continued)

Trial Judge Advocate--Assistant Trial Judge Advocate--Defense Counsel--Assistant
Defense Counsel--Individual Counsel--Reporter--Interpreter--Clerks and Orderlies

  1. COURTS-MARTIAL--PERSONNEL--Trial Judge Advocate.

    1. Selection; relief; absence.--He will be carefully selected.

      When it appears to the president of the court, or to the trial judge advocate himself, that the latter is for any reason, including bias, prejudice, or hostility in a particular case, disqualified or unable properly and promptly to perform his duties, the facts will be reported at once to the appointing authority through appropriate channels.

      For a proper reason (e.g., preparation of another case) the court, if in session, otherwise the president, may excuse from attendance during a trial or trials such of the personnel of the prosecution as will not be required.

    2. Duties in general; weekly report; report to commanding officer of result of trial; freedom in conducting cases.--The trial judge advocate of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of its proceedings. (A.W. 17.) 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. Suggestions for trial judge advocates are in App. 5. See 95 as to oath.

      Unless otherwise directed by the appointing authority, he will submit a weekly report to the latter through the president of the court, who will forward it through appropriate or designated channels. In addition to such matter as may be required by the appointing authority, this report will include a statement of the reasons for the delay in finally disposing of cases that have been on hand for over two weeks.

      Immediately upon any final adjournment of a court in a case, and irrespective of whether any announcement in open court was made concerning the result, the trial judge advocate will notify the proper commanding officer in writing of the result, including any findings

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      reached and any sentence imposed by the court. See 19 (Duty of commanding officer).

      Subject to the provisions of this manual, he should be left free by the court to introduce his evidence in such order as he sees fit. In general, he may bring cases to trial in such order as he deems expedient. Me will be given ample opportunity properly to prepare the prosecution of each case. With a view to saving time, labor, and expense, he should join in appropriate stipulations as to unimportant or uncontested matters. See 126 (Stipulations).

    1. Duties prior to trial.--He will report to the appointing authority any substantial irregularity in the order appointing the court or in the charges or accompanying papers. Ordinarily he will correct and initial slight errors or obvious mistakes in the charges, but will not without authority make any substantial change therein. He will take proper action to the end that the data as to service, etc., and any evidence of previous convictions may be complete and free from errors of substance or form.

      Unless otherwise directed by the president or unless obviously unnecessary, he will send a timely 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; e.g., a statement of the uniform to be worn.

      Before the court assembles he will obtain a suitable room for the court, see that it is in order, procure the requisite stationery, and take such 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 relevant 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 relevant evidence will be introduced at the trial, and a determination of the order in which the evidence will be introduced. The general principle as to the order of introducing evidence is that the case should be presented in sequence of events as nearly as practicable, and that, 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

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      the court nor the accused may be in doubt at any time as to the offense to which the evidence being introduced refers.

      If he finds that the provisions of this manual are not sufficiently specific clearly to settle a question likely to arise at the trial, he should endeavor to secure for use at the trial authorities (such as pertinent decisions of the courts or authoritative military precedents) to sustain his contentions. To the end of securing such authorities, he may communicate with or consult the appointing authority.

      If, while preparing a case for trial, he discovers a matter, which in his opinion makes it inadvisable to bring the case to trial, he will at once bring such matter to the attention of the appointing authority, provided it is reasonably apparent that such matter was not known to the appointing authority when the charges were referred for trial. Such action would be appropriate where, for example, the trial judge advocate discovers evidence that the accused was or is insane, o r finds that the only witness to an essential fact has disappeared or repudiates the substance of the testimony expected from him.

    1. Duties during trial.--He executes all orders of the court. Under the direction of the court he keeps or superintends the keeping of the required record of the proceedings. He signs the record of each day's proceedings.

      While 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.

      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.

      Aside from opinions expressed in the proper discharge of his duty, to prosecute (e.g., in an argument on the admissibility of evidence), he should not give the court his opinion upon any point of law arising during the trial except when it is asked for by the court in open court. When he addresses the court he will rise. The court may require him to reduce his arguments to writing.

    2. Relations to 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 on 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

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      that such copy has been so served. Except as otherwise directed by the appointing authority, he will permit the defense to examine from time to time any papers accompanying the charges, including papers sent with charges on a rehearing. He will also permit the defense to examine from time to time the orders appointing the court and all modifying orders.

      Ordinarily his dealings with the defense will be through any counsel the accused may have. Thus if he desires to know how the accused intends to plead he will ask the defense counsel or other counsel, if any, of the accused. He should not attempt to induce a plea of guilty.

      The defense will be allowed to read the record as it is written up, except unannounced findings and sentence; and the trial judge advocate of a general court-martial will furnish every person tried by the court who desires one a copy of the record of trial, less unannounced findings and sentence and exhibits not copied. See in this connection 46b (Preparation of carbon copies); 48 (Clerks and orderlies); and 85b (Receipt or certificate of delivery).

  1. COURTS-MARTIAL--PERSONNEL--Assistant Trial Judge Advocate.

    1. Duties in general.--An assistant trial judge advocate of a general court-martial shall be competent to perform any duty devolved by law, regulation, or the custom of the service upon the trial judge advocate of the court. (A.W. 116.) He will perform such duties in connection with trials as the trial judge advocate may designate. See App. 5 for suggestions as to appropriate duties and 95 as to oath.

    2. Term "trial judge advocate" includes assistant.--Wherever in this manual the trial judge advocate of a general court-martial is mentioned the term will be understood to include assistant trial judge advocates, if any, unless the context shows clearly that a different sense is intended.

  2. COURTS-MARTIAL--PERSONNEL--Defense Counsel.

    1. Selection; relief; absence.--He will be carefully selected.

      When it appears to the president of the court or to the defense counsel himself that the latter is for any reason, including bias, prejudice, or hostility in a particular case, disqualified or unable properly and promptly to perform his duties, the facts will be reported at once to the appointing authority through appropriate channels. For a proper reason (e.g., preparation of another case) the court, if in session, otherwise the president, may with the consent of the accused excuse from attendance during the trial such of the personnel of the defense as will not be required.

    2. Duties.--When the defense is not in charge of a counsel of the accused's own selection, the duties, etc., of the defense counsel are

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      those of a military counsel of the accused's own selection. (See 45.) When the defense is in charge of a counsel of the accused's own selection, civil or military, the duties of the defense counsel as associate counsel are such as the selected counsel may designate.

      Immediately upon charges being referred for trial to the court he will inform the accused of that fact and of his rights as to counsel, and will render the accused any desired assistance in securing and in consulting counsel of his own selection. Unless the accused otherwise desires the defense counsel will undertake the defense without waiting for the appointment or the retaining of any individual counsel.

    1. Term "counsel for the accused."--Whenever the phrase "counsel for the accused," or any similar phrase, is used in this manual if is to be understood, unless the context indicates otherwise, as including the defense counsel of the court and any individual counsel.

  1. COURTS-MARTIAL--PERSONNEL--Assistant Defense Counsel.

    1. Duties.--An assistant defense counsel shall be competent to perform any duty devolved by law, regulation, or the custom of the service upon counsel for the accused. (A.W. 116.) Unless in charge of the defense, he will perform such duties in connection with the trial as the counsel in charge of the defense may designate.

    2. Term "defense counsel" includes assistant.--Whenever in this manual the defense counsel of a general court-martial is mentioned, the term will be understood to include an assistant defense counsel, if any, unless the context shows clearly that a different sense is intended.

  2. COURTS-MARTIAL-PERSONNEL--Individual Counsel for the Accused.

    1. Statutory rights of accused; detail of individual counsel.--The accused shall have the right to be represented in his defense before the court (general or special court-martial) by counsel of his own selection, civil counsel if he so provides, or military if such counsel be reasonably available, otherwise by the defense counsel duly appointed for the court pursuant to A.W. 11. Should the accused have counsel of his own selection, the defense counsel and assistant defense counsel, if any, of the court, shall, if the accused so desires, act as his associate counsel. (A.W. 17.) Civilian counsel will not be provided at the expense of the Government.

      Application, through the usual channels, for the detail of a person selected by the accused as military counsel may be made by the accused or anyone on his behalf. When the application reaches an officer who is authorized to make the detail and order any necessary travel, he will act thereon. His decision is subject to revision by his immediate superior on appeal by or on behalf of the accused.

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    1. Duties in general; freedom in conducting defense.--An officer, or other military person, acting as individual 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 civil courts 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 or in connection with the case 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 accused's innocence or to tolerate any manner of fraud or chicane.

      With a view to saving time, labor, and expense, he should join in appropriate stipulations as to unimportant or uncontested matters. See 126 (Stipulations).

      Before the trial he will explain to the accused the meaning and effect of a plea of guilty and his right to introduce evidence after such plea (see 70); his right to testify or to remain silent (see 120d and 121b); his right to make a statement, see 76); his right to introduce evidence in extenuation (see 111); and, in an appropriate case, his right to plead the statute of limitations (see 67 and 78). These explanations will be made regardless of the intentions of the accused as to testifying, making a statement, or as to how he will plead.

      His preparation for trial should include a consideration of the essential elements of each offense charged and of the pertinent rules of evidence, to the end that such evidence as he proposes to introduce in defense may be confined to relevant evidence, and that he may be ready to make appropriate objection to any irrelevant evidence that might be offered by the prosecution. In determining the order in which he proposes to introduce evidence for the defense, he should observe the general principle stated in the third subparagraph of 41c.

      The fourth subparagraph of 41c applies equally to him.

      He will examine the record of the proceedings of the court before it is authenticated.

      The court will avoid any unwarranted interference in his conduct of the defense, but may require him to reduce his arguments to writing. When he addresses the court he will rise.

      Ample opportunity will be given him and the accused properly to prepare the defense, including opportunities to interview each other and any other person.

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      Where the trial proceeds after the accused has escaped, the individual counsel continues to represent him.

  1. COURTS-MARTIAL--PERSONNEL--Reporter.

    1. Authority for appointment or detail.--Under such regulations as the Secretary of War may from time to time prescribe, the president of a court-martial or military commission or a court of inquiry shall have power to appoint a reporter. (A.W. 115.)

      Enlisted men may be detailed to serve as stenographic reporters for general courts-martial, courts of inquiry, military commissions, and retiring boards. (Act of August 24, 1912, 37 Stat. 575.)

      Subject to such exceptions as may be made by appointing authorities, and within the limitations of the statutes quoted above, the appointment of reporters or the detail of enlisted men to serve as stenographic reporters is hereby authorized, except for summary courts-martial and except for special courts-martial, when the appointing authority does not direct that the testimony be reduced to writing.

      In the appointment of civilian reporters, among applicants equally qualified, preference will be given to former members of the armed forces of the United States, who have been honorably discharged therefrom, and to their widows, and also to the wives of any such honorably discharged former members of the armed forces of the United States, who have been injured and are not themselves qualified, but whose wives are qualified to hold such positions.

    2. Duties; oath; compensation.--He shall record the proceedings of and testimony taken before such court or commission and may set down the same, in the first instance, in shorthand. (A.W. 115.) If a question is raised 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 regulations.

      He will be required to discharge his duties as promptly as practicable under the circumstances. He will prepare one carbon copy of the typewritten parts of general court-martial record, and such additional carbon copies thereof as may be required by the trial judge advocate, not exceeding the number authorized by the appointing authority.

      See 95 as to oath, and AR 35-4120 as to compensation.

  2. COURTS-MARTIAL--PERSONNEL--Interpreter.

    1. Authority for appointment.--Under such regulations as the Secretary of War may from time to time prescribe, the president of a court-martial or military commission, or court of inquiry, or a summary court, may appoint an interpreter. (A.W. 115.) Interpreters may be employed

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      for courts-martial whenever necessary without application to the appointing authority.

    1. Duties; oath; compensation.--He shall interpret for the court. (A.W. 115.)

      In questioning a witness through an interpreter the question should be put in the same form as when questioning a witness not through an interpreter. Thus, ask "What is your name?" instead of telling the interpreter to 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 95 as to oath, and AR 35-4120 as to compensation.

  1. COURTS-MARTIAL--PERSONNEL--Clerks and Orderlies.--When necessary the commanding officer will detail suitable soldiers as clerks and as orderlies to assist the trial judge advocate and counsel for the accused.

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