Chapter VIII.
Courts-martial--Personnel

Appointment--Changes in Personnel--Members--President--Law Member

36. COURTS-MARTIAL--PERSONNEL--Appointment.--See 4-6, inclusive, for various matters relating to the appointment of courts-martial, including the detail of a law member, and the appointment of a trial judge advocate, defense counsel, and assistants.

    Courts should be assembled at posts or stations where trial will be attended with the least expense and delay.

    For forms of appointing orders, see App. 2.

37. COURTS-MARTIAL--PERSONNEL--Changes in personnel.--It is within the discretion of the appointing authority to make changes in the personnel appointed or detailed by him; for instance, he may detail new members or a new trial judge advocate.

    In the interest of expeditious and well-conducted trials the proper commanding officer should make timely recommendations to the appointing authority as to relieving or adding members, changing the trial judge advocate, assistant trial judge advocate, defense counsel or assistant defense counsel, or appointing a new court.

38. COURTS-MARTIAL--PERSONNEL--Members.

    1. Duties in general; oath.--A member stationed at the place where the court sits is liable to duty with his command during adjournment from day to day.

       Members will be dignified and attentive. While a court has no power to punish its members, improper conduct by a member, such as a refusal or failure to vote or properly to discharge any other duty under his oath or otherwise, is a military offense.

       Each member has an equal voice and vote with other members in deliberating upon and deciding all questions submitted to s vote or ballot, neither the president nor the law member having any greater rights in such matters than any other member.

       Where before trial it appears to a member that he should not sit on the court, either at all or in a particular case, for reasons that will probably not otherwise seasonably [sic] come to the attention of the appointing authority, he will take appropriate and timely steps with a view to bringing the matter to the attention of the appointing authority.

       See 95 as to oath of members.

2. New member.--If after the trial has begun a new member is sworn (opportunity to challenge him having been given), the substance of all proceedings had and evidence taken in the case will be made known to him in open court before the trial proceeds.

3. Absence of members--In general.--A member of a general or special court-martial who has reason to believe that he will be absent from a session of the court will so inform the trial judge advocate, stating the reason.

   Where less than a quorum is present the court can not be organized as such or proceed with a trial. Less than five members (three in the case of a special court-martial) may adjourn from day to day, and where five (three) are present and one is challenged, the remaining four (two) may pass on the challenge.

   If the membership of a court-martial is reduced below the minimum required by law, or if the trial judge advocate has good reason to anticipate such a reduction, he will report the facts to the appointing authority. The report by the trial judge advocate of a general court-martial will usually be made through the commanding officer of the post, command, or station where the court is sitting, who will promptly forward it or the substance thereof and the names of an appropriate number of officers available and suitable for detail.

   The principles of 38b apply when a member, on account of absence during a trial, misses part of the proceedings.

   Absence of law member.--In case of the absence of the law member from, or at any time during, the trial of a case that has been specifically directed to be tried with the law member present, the court will not proceed with the trial until either the law member is present or such direction is revoked; and will, if the circumstances so require, cause a report of the facts to be made to the appointing authority. Where it has not been specifically directed that a case be tried with the law member present the court need not, a quorum being present, discontinue trial on account of his absence. The specific direction referred to and any revocation thereof should as a rule be in writing.

39. COURTS-MARTIAL--PERSONNEL--President.--The senior in rank among the members present is the president and presiding officer of the court.

    As president, and subject to the direction of the court, he maintains order, gives the directions necessary for the regular and proper conduct of the proceedings, takes proper steps to expedite the trial of all charges referred for trial; and, unless otherwise provided, speaks and acts for the court in every instance where a rule of action has been prescribed by law, regulation, or its own resolution, and authenticates by his signature all acts, orders, and proceedings of the

court. With reference to his duty to rule on interlocutory questions, see 51c.

As a member he has the duties, powers, and privileges of members in general.

40. COURTS-MARTIAL--PERSONNEL--Law member.--As law member his principal duty is to rule upon interlocutory questions. See 51d. As a member he has the duties, powers, and privileges of members in general.

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