Chapter XII.
Courts-martial--Procedure

(Continued)

Excusing Members--Challenges--Witness for the Prosecution--Accuser--Oaths--Arraignment

57. COURTS-MARTIAL--PROCEDURE--Excusing Members.

    1. Disclosing grounds for challenge.--After announcing the names of the members present, the trial judge advocate will disclose in open court every ground of challenge believed by him to exist in the case, and will request that each member do likewise with respect to such grounds of challenge whether against the member himself or any other member. The trial judge advocate will give such information to the court as to the general nature of the charges, who signed them, and who participated in the proceedings already had thereon as may be requested by the accused, his counsel or any member.

       Similar disclosure and request will be made by the trial judge advocate with respect to a new member before he is sworn; and the trial judge advocate or any member will disclose any such ground at any time during the proceedings that he becomes aware of it.

    2. Action upon disclosure.--If it appears from any such disclosure that a member is subject to challenge on any ground stated in clauses first to fifth of 58e, and the fact is not disputed, such member will be excused forthwith. Except as just stated, no action is required under this paragraph (57b), with respect to any disclosures that may be made; but proceedings under this paragraph are without prejudice to any rights of challenge of either side.

58. COURTS-MARTIAL--PROCEDURE--Challenges.

    1. Statutory provisions.--Members of a general or special court-martial may be challenged by the accused or the trial judge advocate for cause stated to the court. The court shall determine the relevancy and validity thereof and shall not receive a challenge to more than one member at a time. Challenges by the trial judge advocate shall ordinarily be presented and decided before those by the accused are offered. Each side shall be entitled to one peremptory challenge, but the law member of the court shall not be challenged except for cause. (A.W. 18.)

2. Who subject to; who may challenge.--Only the members of a general or special court-martial are subject to challenge, and they may be challenged only by the trial judge advocate and the accused.

3. When made; reconsideration; opportunity to challenge new member.--Challenges should be made before the arraignment, but the court may permit a challenge for cause to be presented at any stage of the proceedings. A challenge will be so permitted if the challenger has exercised due diligence or if the challenge is based on any of the grounds stated in clauses first to fifth of 58e.

   The fact that a particular challenge for cause has been adversely determined does not preclude the court from again entertaining it if good cause, such as newly discovered evidence, is shown. Pull and timely opportunity will be given to challenge every new member.

4. Peremptory challenges.--A peremptory challenge does not require any reason or ground therefor to exist or to be stated and may be used before, after, or during the challenges for cause, or against a member unsuccessfully challenged for cause, or against a new member, but can not be used against the law member.

   In a joint trial all the accused constitute the "side" (A.W. 18) of the defense and are entitled to but one peremptory challenge.

5. Challenges for cause.--Grounds for.--Among the grounds of challenge for cause are:

   First: That he (the challenged member) is not competent or is not eligible to serve on courts-martial.

   Second: That he is not a member of the court.

   Third: That he is the accuser as to any offense charged.

   Fourth: That he will be a witness for the prosecution.

   Fifth: That (upon a rehearing) he was a member of the court which first heard the case.

   Sixth: That he personally investigated an offense charged as member of a court of inquiry or otherwise.

   Seventh: That he has formed or expressed a positive and definite opinion as to the guilt or innocence of the accused as to any offense charged.

   Eighth: That he will act as reviewing authority or staff judge advocate on the case.

   Ninth: Any other facts indicating that he should not sit as a member in the interest of having the trial and subsequent proceedings free from substantial doubt as to legality, fairness, and impartiality. Examples: That he will be a witness for the defense; that he testified or submitted a written statement on the investigation of the charges, unless at the request of the accused; that he has officially expressed an opinion as to the mental condition of the accused; that he is a prosecutor as to any offense charged; that he has a

direct personal interest in the result of the trial; that he is in any way closely related to the accused; that he participated in the trial of a closely related case; that he is decidedly hostile or friendly to the accused; that not having been present as a member when testimony on the merits was heard, or other important proceedings were had in the case, his sitting as a member will involve an appreciable risk of injury to the substantial rights of an accused, which risk will not be avoided by a reading of the record. See in connection with this last example paragraph 38b and the fourth subparagraph of 38c.
6. Procedure.--After the challenges, if any, presented by the trial judge advocate have been disposed of, he will, after complying with any request made by the accused to be permitted to examine the papers and orders referred to in 41e, give the accused an opportunity to exercise his rights as to challenge. The accused thereupon challenges in turn each member to whom he objects. As to peremptory challenges, see 58d. Full and timely opportunity will be given to the accused, including each accused in a joint trial, to exercise his right of challenge.

   A challenge may be withdrawn by the challenger for any reason; e.g., where the challenged member makes a statement or reply which is satisfactory to the challenger. A challenge on the ground stated in the last example in the ninth clause of 58e will often be withdrawn by the challenger upon his being informed that certain witnesses will be recalled and reexamined.

   Where a member is challenged on the ground that he is the accuser and admits the fact, or where a member is peremptorily challenged, or where, in any case, it is manifest that a challenge will be unanimously sustained, the member may be excused forthwith if no objection or question is made or raised; otherwise the challenge, if not withdrawn, must be passed on by the court after both sides have been given an opportunity to introduce evidence and to make an argument. The challenger may subject the challenged member to an examination under oath as to his competency as a member. For form, etc., of oath, see 95. During deliberation and voting on a challenge the court will be closed.

   Courts should be liberal in passing upon challenges, but need not sustain a challenge upon the mere assertion of the challenger. The burden of maintaining a challenge rests on the challenging party. A failure to sustain a challenge where good ground is shown may require a disapproval on jurisdictional grounds or cause a rehearing because of error injuriously affecting the substantial rights of an accused.

Vote upon the challenge is by secret written ballot, which ballot may be in the form "sustained" or "not sustained." See A.W. 31 as to counting and checking vote and announcing the result of the ballot; and A.W. 19 as to disclosing or discovering the vote or opinion of any particular member upon a challenge. Deliberation on the challenge may properly include full and free discussion. The influence of superiority in rank should not be employed in any manner in an attempt to control the independence of members in the exercise of their judgment. A majority of the ballots cast by the members present at the time the vote is taken shall decide the question of sustaining or not sustaining the challenge. A tie vote on a challenge is a vote in the negative, and the challenge is not sustained. Upon the court being opened the president shall state in open court that the challenge has been sustained or not sustained as the case may be.

The challenged member will take no part as such in the hearings, deliberations, and voting upon a challenge against him. If the challenge is sustained, the challenged member will withdraw, otherwise he will resume his seat. With reference to action on a challenge by a court reduced below a quorum, see 38c.

59. COURTS-MARTIAL--PROCEDURE--Witness for the Prosecution.-- If at any stage of the proceedings any member of the court be called as a witness for the prosecution, he shall, before qualifying as a witness, be excused from further duty as a member in the case. Whether a member called as a witness for the court is to be considered as a witness for the prosecution depends on the character of his testimony. In case of doubt he should be excused as a member. Where a witness called by the defense testifies adversely to the defense, he does not thereby become a "witness for the prosecution."

60. COURTS-MARTIAL--PROCEDURE--Accuser.--An officer who has signed and sworn to the charges in a particular case is necessarily an accuser in that case. But while prima facie the person who signs and swears to the charges is the only accuser in the case, that is not always true. There may be another or others who are real accusers. (See 5.)

61. COURTS-MARTIAL--PROCEDURE--Oaths.--After the proceedings as to challenges are concluded the members of the court, trial judge advocate, and each assistant trial judge advocate are sworn. (See 95 as to oaths.) The organization of the court is then complete and it may proceed with the trial of the charges in the case then before the court.

62. COURTS-MARTIAL--PROCEDURE--Arraignment.--The court being organized and both parties ready to proceed, the trial judge advocate will read the charges and specifications, including the signature of the accuser, to the accused, and then ask the accused how he pleads

to each charge and specification. This proceeding constitutes the arraignment. The pleas are not part of the arraignment. The fact that the service of the charges was within five days of the arraignment (see A.W. 70) does not prevent the arraignment even though the accused objects on that ground to the proceeding, but such fact is available as a ground of valid objection to any further proceedings in the case at that time. As to deferring action on an application for a continuance until after arraignment, see 52c.

During the arraignment, the accused and the personnel of the prosecution and defense will stand. With the consent of the court the accused may waive the reading of the charges and specifications.

The order pursued in case of several charges and specifications, as a rule, will be to arraign on the first;, second, etc., specification to the first charge, then on the first charge, and so on with the rest.

After the members have been sworn to try and determine "the matter now before" them, additional charges, which the accused has had no notice to defend and regarding which the right to challenge has not been accorded him, can not be introduced or the accused required to plead thereto. But if all the usual proceedings prior to arraignment are first had with respect to such additional charges, including proceedings as to excusing and challenging members and administering oaths, such charges may be introduced, the accused may be arraigned on them, and the trial may proceed on both sets as the trial of one case. In such a case an application for a reasonable continuance should be granted.

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