Chapter 11.
Defense Counsel

73. RIGHT OF ACCUSED TO COUNSEL. A defense counsel must be appointed for every general and special court-martial (AW 11). In addition, one or more assistant defense counsel are usually appointed on every general court-martial, the number being equal to the number of assistant trial judge advocates. Every accused tried before a general or special court-martial is, therefore, assured of having counsel to represent him and to protect his rights. He is not, however, required to use the services of the regularly appointed defense counsel, since he may have civilian or military counsel of his own selection if he chooses (AW 17). Civilian counsel, may be detailed, upon request made on behalf of the accused through proper channels, if such person is reasonably available (AW 17; 45a, MCM). A trial, of course, will not be delayed unreasonably until the particular counsel desired by accused is available to serve. In a trial overseas, for example, the accused would not be entitled to a continuance, for the purpose of obtaining civilian counsel of his own choice, until he was transferred back to this country. The regularly appointed defense counsel will immediately advise the accused of his right to select individual counsel (par. 43b, MCM) and should assist in securing such counsel if the accused desires. If the accused does select individual counsel, the regularly appointed defense counsel will assist throughout the trial, performing such duties as individual counsel designates (par. 45b, MCM). Though there is no legal objection to enlisted men serving as individual counsel, the practice is not desirable and should not be encouraged. An accused does not have a right to be represented by counsel before a summary court-martial since the summary court officer performs such functions of a defense counsel as are necessary to safeguard his substantial rights.

74. DUTIES OF DEFENSE COUNSEL IN GENERAL. The duties of a defense counsel, whether he be the regularly appointed counsel or one selected by the accused, are similar to those of a counsel for a defendant in a criminal case before the civil courts, i.e., to represent him at the trial and to present his side of the case. Regardless of his personal opinion

as to the guilt of the accused he must guard his interests by all legitimate and honorable means, and present any proper ground of defense or extenuation (par. 45b, MCM). While he must never resort to any fraud or trickery, he has the duty of presenting to the court everything favorable to the accused. He should disclose promptly to the accused any personal interest or prejudice he may have, however slight and, of course, if such prejudice, bias, or personal interest is so strong as to prevent him from representing the accused conscientiously and fairly, he should ask to be relieved before undertaking the defense. He should not ask, however, to be relieved merely because he may believe that the accused is guilty. An accused who admits his guilt is nevertheless entitled to be represented by counsel and to a fair and impartial trial. It is the function of the court, not of defense counsel, to determine the question of guilt or innocence.
75. DUTIES BEFORE TRIAL.

    1. In general.The first task of a defense counsel is to learn what his duties are. They are described in detail in pars. 43, 44, and 45, MCM. These sections, as well as pertinent cross-references referred to in them, must be thoroughly understood before preparation of any particular case is undertaken. The defense counsel should feel free to call upon the staff judge advocate of his command either to discuss his general duties or to present a problem encountered in preparing the defense of a particular case. There can be no substitute for painstaking preparation.

    2. Receipt and examination of charges and accompanying papers. The defense counsel will probably first learn of a particular case when he is notified by the trial judge advocate. Usually the accused himself will have been personally served with a copy of the charges. Defense counsel should first carefully examine both the charges and the allied papers, preferably before he interviews the accused. Unless he has some knowledge of the offenses charged, the elements comprising them (ch. XXVI, MCM), the substance of testimony of all witnesses, and possible theories of defense, he cannot intelligently discuss the case with the accused. No accused can be successfully represented without obtaining his full confidence, and this can never be gained unless he feels that his counsel is energetically putting forth his best efforts.

    3. Interview with accused. As soon as he is acquainted withe the case, he should at once arrange to interview the accused. Even if the accused is in confinement, he will be allowed to have such interviews with his counsel as may be required. The defense counsel should first tell the accused that he was been detailed to represent him, what his general duties are, and that the accused has the right to select individual counsel, civilian or military, of his own choice. The selection of individual counsel should neither be encouraged nor discouraged. The accused should be told that everything he discloses is confidential, and that the defense

cannot properly be planned unless he tells the whole truth, even though it amounts to a confession of guilt. Counsel should ascertain whether the accused knows of any other witnesses or evidence not disclosed by the papers forwarded. A close questioning frequently reveals details or lines of defense that may not at first be apparent. Even if there is no defense to the charge, there may be reliable testimony as to accused's good character and record of service, or as to circumstances tending to lessen the seriousness of the offense, which should be presented.
4. Advising accused as to pleas. In a proper case the defense counsel will explain to accused his right to plead the statue of limitations in bar of trial (par. 45b, MCM). Thus, if it appears from the charges that they are barred by the statue of limitations, for example, that more than 2 years have elapsed in a case involving absence without leave, the defense counsel should explain to the accused his right to enter such a plea. Other special pleas that may be made are discussed in paragraphs 64 through 69, MCM, and in paragraph 86b, infra. A decision as to whether the accused will plead "guilty" or "not guilty," should always be reached before trial. After a full discussion of the facts of the case with the accused, he should be asked how he desires to plead to each offense. If he indicates that he desires to plead guilty to one or more offenses,the defense counsel should advise him of the meaning and effect of such plea (app. 1, p. 149, infra) and of the maximum punishment he can receive for the offense. He should be told that he has a perfect legal and moral right to enter a plea of not guilty even if he knows he is guilty (par. 64a, MCM), and that, if there is any doubt in his mind, he should enter such a plea. He should not be encouraged to plead guilty to an offense in the hope that by so doing he may receive a lighter sentence. If he desires to plead guilty, little can be done but to offer mitigating or extenuating evidence or, in a proper case, to submit a clemency recommendation at the conclusion of the trial. (See par. 7a, infra).

5. Preparation of case. By way of preparation, the defense counsel will follow substantially the same procedure as the trial judge advocate in studying the charges and allied papers, analyzing the case and interviewing witnesses. (See par. 66, supra.) It is well to interview not only witnesses for the defense but also those for the prosecution, to prepare to cross-examine them, in the light of the expected testimony for the defense. He should make timely request of the trial judge advocate to secure the attendance of defense witnesses if he is doubtful that they will otherwise be present, and should collaborate with the trial judge advocate in the preparation of depositions and stipulations in proper cases. (See par. 68, supra.)
76. DUTIES DURING TRIAL.

    1. In general. It is his duty to present the case for the defense, just as the trial judge advocate presents the case for the prosecution. Like the trial judge advocate, he must be familiar with

court-martial procedure and should be acquainted with the provisions of the Manual for Courts-Martial dealing with such matters (pars. 49 through 84, MCM). Some of the common problems arising in a trial, each as challenges, the examination of witnesses, and arguments, and discussed in chapter 13, infra. That discussion applies equally to the trial judge advocate and defense counsel. The outline of procedure (app. 1, infra) should be used by defense counsel as well as trial judge advocates. Defense counsel must also have some knowledge of the rules of evidence, dealt with in chapter XXV, MCM, some of which are also discussed in chapter 14, this manual.
2. Calling accused as witness. Often the most important question which must be decided in the course of a trial is whether or not the accused shall testify. The defense counsel must make certain that the accused fully understands the courses of action which are open to him, i.e., to remain silent, to testify as a witness, and to make an unsworn statement, and the possible consequences of following each of these courses. A form for explanation of these rights will be found in appendix 1, p. 152, infra. If the accused testifies under oath, he is not only subject to cross-examination like any other witness, but a greater latitude may be allowed in cross-examining him pars. (120d, 121b, MCM). It is, therefore, well to consider the possibility that in testifying as a witness the accused may make admissions, either on direct or cross-examination, as to matters essential to the prosecution's case, thus establishing facts which the prosecution might otherwise be unable to prove. No inference of guilty can be drawn from the failure of the accused to testify (par. 120d, MCM), and no comment can be made by the prosecution on his silence (par. 77, MCM). If he is on trial for a number of offenses, he has the right to testify about only a part of them and remain silent as to the others (par. 121b, MCM). Unless the accused can testify fully and frankly to facts which constitute defense to one or more of the specifications, or which show extenuating or mitigating circumstances, it is usually best that he remain silent. The defense counsel should dissuade him from testifying to an unsubstantiated story which appears incredible and which cannot stand up under cross-examination. The third possible choice, the unsworn statement, should also be carefully explained to the accused, and he should be particularly warned that any admission during the course of the statement may be treated as evidence against him (par. 76, MCM).
77. DUTIES AFTER TRIAL.

    1. Clemency. If the accused is convicted and it is believed that the sentence of the court is too severe, under the circumstances, the defense counsel may prepare a request for clemency in letter form addressed to the reviewing authority. Such a request may be signed by one or more members of the court as well as by the defense counsel (par. 81, MCM). The defense counsel should not mechanically

prepare a clemency request in every case but only in the event that a good reason exists therefor.
2. Examination of record. Before the record of trial is authenticated, the defense counsel will examine and sign or initial it after making certain that it accurately reflects the proceedings of the court. (See par. 128d, infra.)

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