Chapter X.
Courts-martial--Procedure

Certain General Matters--Closed Sessions--Interlocutory Questions Other Than Challenges--Continuances

49. COURTS-MARTIAL--PROCEDURE--Certain General Matters.

    1. Order of proceedings.--The chronological order of the usual proceedings in trials by general and special courts-martial is indicated in the forms of records given in App. 6 and App. 7, respectively; and as far as practicable the discussion in the chapters on procedure herein follows the same order.

    2. Proceedings in each case to be complete.--In each case the proceedings must be complete without reference to any other case. For example, in each case tried opportunity to challenge must be given and the required oaths administered.

    3. Joint trials.--In a joint trial each of the accused must in general be accorded every right and privilege which he would have if tried separately, but needless repetition may be avoided by the use of appropriate general language.

    4. Reference to appointing authority.--Whenever a matter as to future proceedings in a case is referred to the appointing authority by or on behalf of a general court-martial such authority will refer the matter to his staff judge advocate for consideration and advice.

    5. Excluding spectators.--Subject to the directions of the appointing authority, a court-martial is authorized either to exclude spectators altogether or to limit their number. In the absence of a good reason, however (e.g., where testimony as to obscene matters is expected), courts-martial will sit with doors open to the public.

    6. Opportunity to present and support contentions.--Both sides are entitled to an opportunity properly to present and support their respective contentions upon any question or matter presented to the court for decision; but the right should not be abused, and the court may in its discretion limit, or even refuse to hear, argument when it is manifest that such argument is trivial, mere repetition, or made solely for the purpose of delay. As to oral and written arguments, see 77.

    7. Explanation of accused's rights.--Whenever deemed necessary the court will cause to be clearly explained to the accused any right which he appears not fully to understand.

50. COURTS-MARTIAL--PROCEDURE--Closed Sessions.--The clearing and closing of a general or special court-martial is impliedly or expressly required by statute (A.W. 19, A.W. 31), during the deliberation and voting upon the findings and sentence and upon interlocutory questions, including challenges. See, however, 58f (Procedure on challenge).

    Whenever the closing or opening of the court is required, the president will announce such closing or opening.

    When the court is closed, all persons except the members who are to vote on the matter will withdraw, unless such members withdraw to another room for the closed session. See A.W. 30 in this connection.

51. COURTS-MARTIAL--PROCEDURE--Interlocutory Questions Other Than Challenges.

    1. Statutory provisions.--The law member of the court, if any, or if there be no law member of the court then the president, may rule in open court upon interlocutory questions, other than challenges, arising during the proceedings: Provided, That unless such ruling be made by the law member of the court, if any member object thereto, the court shall be cleared and closed and the question decided by a majority vote, viva voce, beginning with the junior in rank: And provided further, That if any such ruling be made by the law member of the court upon any interlocutory question other than an objection to the admissibility of evidence offered during the trial and any member object to the ruling the court shall likewise be cleared and closed and the question decided by a majority vote, viva voce, beginning with the junior in rank. (A.W. 31.)

    2. Applicability of this paragraph.--This paragraph (51) applies to all interlocutory questions arising during the proceedings (i.e., all questions other than the findings and sentence) except the question whether or not a challenge shall be sustained. Any statement or indication in this manual to the effect that a certain question is to be decided by the court (see, for example, 46b) is not to be understood as making an exception to the foregoing rule.

    3. Rulings by the president.--The president of a general court-martial, in the absence of the law member of the court, and the president of a special court-martial in all cases will rule in open court upon all interlocutory questions other than challenges arising during the proceedings, such as questions as to the admissibility of evidence offered during the trial, incompetency of witnesses, continuances, adjournments, recesses, motions, order of the introduction of witnesses, and the propriety of any argument or statement of counsel or trial judge advocate. If a member objects to the ruling of the president upon the question, the court shall be cleared and closed and the question voted on as stated in 51f.

4. Rulings by law member.--The law member of a general court-martial, whenever present, will, instead of the president, rule in open court on all interlocutory questions other than challenges arising during the proceedings.

   On an objection to the admissibility of evidence offered during the trial his ruling is final in so far as concerns the court, and no repetition of the ruling or announcement of its finality is necessary. Rulings of the law member upon other questions are likewise final, unless objected to by a member of the court. Upon such objection the court will be cleared and closed, and the question decided as stated in 51f.

   As to what is not included in the phrase "objection to the admissibility of evidence offered during the trial," see A.W. 31.

5. Form of rulings.--Each ruling by the president, and each ruling of the law member which is subject to objection, should be prefaced by some such statement as "subject to objection by any member."

6. Voting on.--When voting on any interlocutory question other than a challenge the members of the court shall vote orally beginning with the junior in rank, and the question shall be decided by a majority vote. (A.W. 31.) If there be a tie vote on any objection, motion, request, etc., the objection, motion, request, etc., is overruled or denied. The voting is in closed session, but the president announces the decision in open court.

7. Necessary inquiry to be made--Preponderance of evidence controls.--The ruling or decision should be preceded by any necessary inquiry into the pertinent facts and law. Upon such inquiry questions of fact are determined by a preponderance of evidence. While the responsibility of making a ruling devolves upon the law member or president, as the case may be, he may properly ask that the court close, in order to permit him to consult with the other members of the court before making his ruling.
52. COURTS-MARTIAL--PROCEDURE--Continuances.

    1. Statutory provision; number of; postponement, etc., in lieu oi continuance.--A court-martial may, for reasonable cause, grant a continuance to either party for such time and as often as may appear to be just. (A.W. 20.)

       There is no limit to the number of continuances which may be granted. Any necessity for formal continuance may often be obviated by requesting the president to postpone the assembling of the court or by requesting the court to adjourn or to take a recess.

    2. Grounds for; effect of denying.--Among the grounds that may be considered as reasonable are the absence of a material witness; sickness of the trial judge advocate, accused, counsel, or witness; insufficient time to prepare for trial; and a pending prosecution in a civil court based on the same act or omission.

A failure by the trial judge advocate to cause a copy of the charges to be served as required may be a ground for a continuance; and in time of peace no person shall, against his objection, be brought to trial before a general court-martial within a period of five days subsequent to the service of charges upon him. (See A.W. 70.)

The refusal by a court to grant a continuance where a reasonable cause is shown will not nullify the proceedings, but may be good ground for directing a rehearing.

3. Application and action thereon.--Application should be made to the court if in session; otherwise to the appointing authority; but an application to the court for an extended delay, if based on reasonable cause, may be referred by the court to the appointing authority.

   The proper time for making an application to the court is after the accused is arraigned and before he pleads. The court may defer until after arraignment action on an application made before arraignment, and should so defer action whenever it appears that the granting of a continuance before arraignment may involve a risk of the trial of an offense being barred by the statute of limitations. (See 67.)

   Reasonable cause for the application must be alleged. For instance, when a continuance is desired because of the absence of a witness, the application should show that the witness is material, that due diligence has been used to procure his testimony or attendance, that the party applying fox the continuance has reasonable ground to believe that he will be able to procure such testimony or attendance within the period stated in the application, the facts which he expects to be able to prove by such witness, and that he can not safely proceed with the trial without such witness.

   In general the facts as set forth in the application may be accepted as substantially true; but if long or repeated delay is involved, or the facts are disputed or improbable, or any other good reason exists, the applicant may be required to furnish further proof. On any issue of law or fact arising in the proceedings on an application for a continuance, both parties will be given an opportunity to present evidence and make an argument.

   An application based on the absence of a witness may be denied where the opposite party is willing to stipulate that the absent witness would testify as stated in the application, unless it clearly appears that such denial would be prejudicial.

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