Chapter XV.
Courts-martial--Procedure

(Continued)

Statements--Arguments--Findings--Data as to Service, etc.; Evidence of Previous Convictions;
Evidence of Former Discharges; Evidence of Former Punishment--Sentence--Announcing Sentence;
Matters of and Recommendations to Clemency; Adjournment

76. COURTS-MARTIAL--PROCEDURE--Statements.--The accused, whether he has testified or not, may make an unsworn statement to the court in denial, explanation, or extenuation of the offenses charged, but this right does not permit the filing of the accused's own affidavit. This statement is not evidence, and the accused can not be cross-examined upon it, but the prosecution may rebut statements of fact therein by evidence.

    Such consideration will be given the statement as the court deems warranted.

    The statement may be oral or in writing, or both; and may be made by the accused, by counsel, or by both. A written statement should be signed, and is ordinarily read to the court by the accused or by counsel.

    The statement should not include what is properly argument, but ordinarily the court will not check a statement on that ground if it is being made orally and personally by an accused.

    If the statement made by an accused himself includes admissions or confessions, they may be considered as evidence in the case, but in a joint trial the statement by one accused is not evidence against his coaccused. If a statement made by either accused or counsel is inconsistent with a plea of guilty or indicates that such plea may have been entered improvidently or through lack of understanding of its meaning and effect, appropriate action will be taken by the court. See 70 (Pleas to the general issue.).

77. COURTS-MARTIAL--PROCEDURE--Arguments.--After both sides have rested, arguments may be made to the court by the trial judge advocate, the accused, and his counsel. The trial judge advocate has the right to make the opening argument, and if any argument is made on behalf of the defense, the closing argument. Arguments throughout the trial may be oral, in writing, or both, except where the court requires an argument to be reduced to writing.

See 41d and 45b. Arguments in writing will ordinarily be read to the court by the party who submits them. The last subparagraph of 76 applies equally to arguments.

The failure of an accused to take the stand must not be commented upon; but if he testifies and if he fails in such testimony to deny or explain specific facts of an incriminating nature that the evidence of the prosecution tends to establish against him, such failure may be commented upon. Where, however, an accused is on trial for a number of offenses and taking the stand in his own defense testifies to one or more of them only, no comment can be made on his failure to testify as to the others.

Refusal of a witness to answer a proper question may be commented upon. As to permissible comments on the fact that one witness testified after hearing another, see 121a (Examination of witnesses).

After the arguments and before the court closes for the findings, both sides should be asked whether they have anything further to offer.

78. COURTS-MARTIAL--PROCEDURE--Findings.

    1. General.-Basis of Findings.--Only matters properly before the court as a whole may be considered. A member should not, for instance, be influenced by any knowledge of the acts, character, or service of the accused not based on the evidence or other proper matter before the court; or by any opinions not properly in evidence; or by motives of "partiality, favor, or affection." See in this connection 76 (Statements) and 77 (Arguments). Matters as to which comment in argument is prohibited can not be considered.

       A member is, however, expected to utilize his common sense, and his knowledge of human nature and of the ways of the world in weighing the evidence. In the light of all the circumstances of the case he should consider the inherent probability or improbability of the evidence, and with this in mind may properly believe one witness and disbelieve several witnesses whose testimony is in conflict with that of the one. See in this connection 124 (Credibility of witnesses) and 114a (Confessions).

       Reasonable Doubt.--In order to convict of an offense the court must be satisfied, beyond a reasonable doubt, that the accused is guilty thereof. By "reasonable doubt" is intended not fanciful or ingenious doubt or conjecture but substantial, honest, conscientious doubt suggested by the material evidence, or lack of it, in the case. It is an honest, substantial misgiving, generated by insufficiency of proof. It is not a captious doubt, nor a doubt suggested by the ingenuity of counsel or court and unwarranted by the testimony; nor a doubt born of a merciful inclination to permit the defendant to

escape conviction; nor a doubt prompted by sympathy for him or those connected with him. The meaning of the rule is that the proof must be such as to exclude not every hypothesis or possibility of innocence but any fair and rational hypothesis except that of guilt; what is required being not an absolute or mathematical but A moral certainty. A court-martial which acquits because, upon the evidence, the accused may possibly be innocent falls as far short of appreciating the proper amount of proof required in a criminal trial as does a court which convicts on a mere probability that the accused is guilty. (See Winthrop.)

The rule as to reasonable doubt extends to every element of the offense. Thus, if, in a trial for assault with intent to kill, a reasonable doubt exists as to such intent, the accused can not properly be convicted as charged, aLthough he might be convicted of the lesser included offense of assault. Prima facie proof of an element of an offense does not preclude the existence of a reasonable doubt with respect to such element. The court may decide, for instance, that the prima facie evidence presented does not outweigh the presumption of innocence.

Where a reasonable doubt exists as to the mental responsibility of an accused for an offense charged, the accused can not legally be convicted of that offense. A person is not mentally responsible for an offense unless he was at the time so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged both to distinguish right from wrong and to adhere to the right.

A reasonable doubt may arise from the insufficiency of circumstantial evidence, and such insufficiency may be with respect either to the evidence of the circuMstances themselves or to the strength of the inference from them.

Reasons for Findings; Divulging or Disclosing Findings, etc.--No finding should include any indication of the reasons for making it. For the information of the reviewing authority, but not as a part of a finding, the court may formulate for inclusion in the record a statement of the reasons which led to a finding, and a statement of the weight given to certain evidence. A proper occasion for such action mould be when the court finds an accused not guilty because of a doubt as to his sanity.

See A.W. 19 as to divulging findings, and as to disclosing or discovering the vote or opinion of a member upon the findings.

Acquittal; Statute of Limitations.--Whenever the court has acquitted the accused upon all specifications and charges, the court shall at once announce such result in open court. An acquittal automatically

results from findings of not guilty of all charges and specifications. If by exceptions and substitutions the accused is found guilty of an offense against which it appears that the statute of limitations (A.W. 39) has run, the court may advise the accused in open court of his right to plead the statute in bar of punishment if he so desires. If the accused does plead the statute, the matter will be determined in substantially the same manner as provided for the determination of a plea of the statute in bar of trial.
2. Findings as to the charges.--Permissible findings include guilty; not guilty; not guilty, but guilty of a violation of the --- Article of War.

   An attempt should be found as a violation of A.W. 96, unless the attempt is included in the express terms of some other article.

   The finding of the charge as to any specification should be supported by, and not be inconsistent with, the finding of that specification. Thus, where two specifications of desertion are under one charge and the accused is found guilty of the first specification, but guilty of absence without leave only as to the second specification, the finding should be: Of the Charge: As to Specification 1: Guilty. As to Specification 2: Not guilty, but guilty of a violation of the 61st Article of War. A finding of guilty of one specification appropriate to its charge requires a finding of guilty of the charge; but a finding of not guilty of another such specification under that charge does not require any finding of the charge as to it. Thus, upon finding an accused guilty of one of the two specifications under a proper charge, and not guilty of the other, the finding of the charge should be simply guilty.

3. Findings as to the specifications.--General.--Permissible findings include guilty; not guilty; guilty with exceptions, with or without substitutions, and not guilty of the exceptions and guilty of any substitutions as stated below.

   The finding should be consistent with itself. For instance, a finding of guilty without criminality should not be made.

   Any different findings as to two or more joint accused should be consistent with one another. For instance, where one of two joint accused is found not guilty and the other is found guilty, the name of the former as well as the words indicating a joint offense should be eliminated from the specification by the finding as to the latter. Where, however, three or more accused are involved, it is sufficient if the finding as to each accused clearly appears from reading the record of all the findings together.

   Exceptions and Substitutions.--One or more words or figures may be excepted and, where necessary, others substituted, provided the

facts as so found constitute an offense by an accused which is punishable by the court, and provided that such action does not change the nature or identity of any offense charged in the specification or increase the amount of punishment that might be imposed for any such offense. The substitution of a new date or place may, but does not necessarily, change the nature or identity of an offense.

Lesser Included Offense.--If the evidence fails to prove the offense charged but does prove the commission of a lesser offense necessarily included in that charged, the court may by its findings except appropriate words, etc., of the specification, and, if necessary, substitute others instead, finding the accused not guilty of the excepted matter but guilty of the substituted matter. A familiar instance is a finding of guilty of absence without leave under a charge of desertion. Such a finding may be thus worded when the specification is in the usual form: Of the specification: Guilty except the words "desert" and "in desertion," substituting therefor, respectively, the words "absent himself without leave from" and "without leave," of the excepted words not guilty, of the substituted words guilty.

In the discussion of certain offenses in 127-152 (Punitive articles) some of the included offenses are stated.

4. Procedure.--The court sits in closed session during deliberation on the findings. Deliberation may properly include full and free discussion as to the merits of the case. 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.

   Voting is by secret written ballot (A.W. 31) and is obligatory. A finding of not guilty results as to any specification or charge if no other valid finding is reached thereon; but a court may reconsider any finding at any time before the same has been announced or the court has opened to receive evidence of previous convictions. The order in which several charges and specifications are to be voted upon will be determined by the president, subject to the control of the court, except that all the specifications under a charge shall precede that charge. See A.W. 43 as to the number of votes required and A.W. 31 as to counting and checking votes and announcing the result of the ballot. If in computing the number of votes required a fraction results such fraction will be counted as one; thus where five members are to vote a requirement that two-thirds concur is not met if less than four concur.

79. COURTS-MARTIAL--PROCEDURE--Data as to Service, etc.; Evidence of Previous Convictions; Evidence of Former Discharges; Evidence of Former Punishment.

    1. General.--In the event of conviction of an accused the court will open for the purpose of receiving as evidence

such data as to his age, pay, and service as may be shown on the first page of the charge sheet, and of giving the trial judge advocate an opportunity to introduce evidence of the accused's previous convictions by court-martial.

This evidence, and any evidence of the accused's former discharges (79d), and any evidence of former punishment under A.W. 104 (79e), is for consideration by the court in fixing the kind and amount of punishment. See in this connection 102-104 (Punishments).

A written stipulation containing the pertinent data as to service and previous convictions may be accepted by the court.

2. Data as to service, etc.--If the defense objects to such data as being inaccurate or incomplete in a specified material particular, or as containing certain specified objectionable matter, the court may either sustain the objection without further inquiry or proceed to determine the issue. Objections not asserted may be regarded as waived.

3. Evidence of previous convictions.--Such evidence is not limited to evidence relating to offenses similar to the one of which the accused stands convicted or to the evidence referred with the charges. Such evidence must, however, relate to offenses committed during a current enlistment, appointment, or other engagement or obligation for service of the accused, and in the case of an enlisted man during the one year, and in the case of others during the three years next preceding the commission of any offense charged. In computing the one or three years, as the case may be, periods of unauthorized absences as shown by the findings in the case or by the evidence of previous convictions should be excluded.

   In the case of a general prisoner, whether the sentence of dishonorable discharge was suspended or not, the rules as to an enlisted man apply, except that the evidence of previous convictions should be limited to evidence of offenses committed during his status as a general prisoner.

   Unless the accused has been tried for an offense in the sense of A.W. 40, evidence as to such offense is not admissible as evidence of a previous conviction. See 68 (Former trial).

   As to documentary evidence of previous convictions, see the last subparagraph of 68 (Former trial). The accused's service record or an admissible copy or extract copy thereof may also be used. The accused may, of course, object on proper grounds to the introduction of any offered evidence of previous convictions. If he does, action as indicated in 79b will be taken. Any objection not asserted may be regarded as waived. In the absence of objection an offense may be regarded as having been committed during the required periods unless the contrary appears.

4. Evidence of former discharges.--The accused may introduce evidence of the character given him on any former discharges from

the military service, subject to the right of the prosecution to introduce in rebuttal evidence of the character given the accused on other former discharges from such service.
5. Evidence of former punishment.-The fact that disciplinary punishment under A.W. 104 has been enforced may be shown by the accused upon his trial for a crime or offense growing out of the same act or omission for which such punishment under A.W. 104 was imposed and enforced. (A.W. 104.)
80. COURTS-MARTIAL--PROCEDURE--Sentence.

    1. General.--Basis for Determining.--To the extent that punishment is discretionary, the sentence should provide for a legal, appropriate, and adequate punishment. See 102-104 (Punishments). In the exercise of any discretion the court may have in fixing the punishment, it should consider, among other factors, the character of the accused as given on former discharge, the number and character of the previous convictions, the circumstances extenuating or aggravating the offense itself, or any collateral feature thereof made material by the limitations on punishment. The members should bear in mind that the punishment imposed must be justified by the necessities of justice and discipline. See in this connection 78a (Basis of findings); 79a (Evidence of former punishment); and 111 (Evidence in extenuation). Comments with respect to matters proper for consideration in fixing the punishment are made in other connections. For examples, see 126a and 139a.

       In deliberating upon the sentence the court will consider only such evidence of previous convictions as relate to offenses committed in the case of an enlisted man or general prisoner during the one year, and in the case of others during the three years next preceding the commission of any offense of which the accused has been found guilty by the court.

       The imposition by courts-martial of inadequate sentences upon officers and others convicted of crimes which are punishable by the civil courts would tend to bring the Army, as to its respect for the criminal laws of the land, into disrepute.

       If the accused is found guilty of two or more offenses constituting different aspects of the same act or omission, the court should impose punishment only with reference to the act or omission in its most important aspect.

       Miscellaneous.--Forms of sentences are given in App. 9. See A.W. 19 as to divulging the sentence and as to disclosing or discovering the vote or opinion of a member upon the sentence.

       For the information of the reviewing authority a court-martial may formulate for inclusion in the record a brief statement of the reasons for the sentence.

2. Procedure.--The court sits in closed session during deliberation on the sentence. Deliberation 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.

   Voting is by secret written ballot (A.W. 31) and is obligatory on each member regardless of his vote as to the findings. It is the duty of each member to vote for a proper sentence for the offense or offenses of which the accused has been found guilty, without regard to his opinion or vote as to the guilt or innocence of the accused. See A.W. 43 as to the number of votes required, and A.W. 31 as to counting and checking votes and announcing the result of the ballot. If in computing the number of votes required a fraction results, such fraction will be counted as one; thus where six members are to vote, a requirement that three-fourths concur is not met unless five concur. Any sentence, even in a case where the punishment is mandatory, must be concurred in by the required number of members.

81. COURTS-MARTIAL--PROCEDURE-Announcing Sentence; Matters of, and Recommendations to, Clemency; Adjournment.--When a court-martial has sentenced an accused, the court will at once announce the findings and sentence in open court, unless, in the court's opinion, good reasons exist for not making the findings and sentence public at that time. In this latter event, the president may state in open court that the findings and sentence are not to be announced.

    After such announcement or statement, the defense may submit in writing for attachment to the record any matters as to clemency which it desires to have considered by the members of the court or the reviewing authority. The rules of evidence are not applicable to such matters.

    One or more recommendations to clemency, each signed by the members joining therein, may be submitted to the trial judge advocate for forwarding with the record. Such recommendation may include a recommendation for the suspension of all or part of the sentence, including a sentence of dishonorable discharge. It should be specific as to amount and character of clemency recommended and as to the reasons for the recommendation.

    At the conclusion of the case, the court may proceed to other business or adjourn until a definite time or adjourn to meet at the call of the president.

    As to duty of trial judge advocate to notify the commanding officer of the result of trial, see 41b.

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