Chapter 13.
Trial Procedure

82. GENERAL. The purpose of a trial is to present evidence to the court so that it may decide whether the accused did what he is charged with doing and, if it is found that he did, adjudge a proper sentence. The first stage of the trial consists of the assembling, organization and swearing of the court, reading the charges and determining how the accused pleads to them. The second stage consists in the presentation of evidence against the accused by the prosecution, of evidence in his behalf by the defense and of arguments, if any, by both sides. The third stage consists in the deliberation and voting by the court on the findings and sentence, and the announcement by the court of such findings and sentence. The entire procedure of a trial is covered in detail in paragraphs 49 through 84, MCM. A step-by-step outline of the procedure for trials before general courts martial is contained in appendix 3 of this manual. The present chapter does not discuss the entire course of procedure, but explains some of the more common incidents of a trail which are sometimes sources of difficulty or error. Most of the procedure discussed has reference to a trial by general or special court-martial. The procedure for trials by summary courts is dealt with in chapter 9, supra.

83. PRELIMINARY MATTERS. At the date and hour set for trial, the members of the court assemble, together with the trial judge advocate, the defense counsel, and assistant trial judge advocate and defense counsel, if any. Unless a quorum of the court (i.e.,five members of a general court-martial, three of a special) and the accused are present, the trial cannot proceed. The members are seated, with the president in the center, the law member on his immediate left, and other members alternately to the right and left according to rank. The figure below illustrates the proper seating of a general court-martial and the arrangement of the courtroom (the figure being based on the court assembled for the trial of Private Bark, app. 2, infra.)

When the court has been properly seated and called to order, the name of the accused is announced and defense counsel introduced. The reporter (if any) is sworn and the trial judge advocate announces the names of the members of the court present, stating the names and reasons for the absence of any who are not present. The court is then ready to consider and dispose of challenges to any of the members.

83. CHALLENGES.

    1. In general. A challenge is an objection to the right of a member to participate in the trial. There are two classes of challenges: (1) challenges for cause, and (2) peremptory challenges. A challenge for cause is an objection to a member on the ground that he is disqualified to participate for reasons stated to the court. Nine grounds for such disqualification are listed in paragraph 58b, MCM). Such objections may not be made to trial judge advocates, defense counsel or summary court officers.

    2. Disclosing grounds of challenge. After announcing the names of the members present, the trial judge advocate must state any ground for

challenge which he believes exists and will call upon every member to make similar disclosure with respect to any grounds of challenge against the member himself or any other member (par. 57a, MCM). The purpose of this disclosure is to insure that all possible grounds for disqualification will be known so that proper action can be taken to excuse or challenge any disqualified member. If it appears from the facts thus disclosed that a member falls within the first five classes enumerated in 58e, MCM, for example, that he is not a commissioned officer, or was not appointed on the court, or is the accuser, or will be a witness for the prosecution, his continued presence on the court will make the entire proceedings void. If, therefore, there is no dispute as to those facts, he must be excused at once by the president without requiring a challenge. If any other of the nine grounds for disqualification are revealed, for example, that a member was the investigating officer in the case, or had formed a definite opinion that the accused was guilty, or was a brother of the accused, no action will be taken until that member is challenged.
3. Presenting challenges. After disclosure of all possible disqualifying facts, the trial judge advocate will proceed to state any challenges for cause that he has. Although there is no limit to the number of challenges for cause he may make, only one may be presented at a time. When all his challenges have been presented and disposed of by the court, including his one peremptory challenge, if made (f, infra), the defense will be afforded an opportunity to present its challenges (par. 58f, MCM). In challenging a member for cause, the reason for the challenge must be stated. Thus, "The prosecution challenges Captain Ritter on the ground that he is decidedly friendly to the accused," or "The defense challenges Major Sikes on the ground that he has expressed a positive opinion as to the guilt of the accused," would be a proper statement of a challenge.

4. Disposition of challenges for cause. When a challenge has been made, it becomes the duty of the court to determine whether it should be sustained or not sustained. The party making the assertion that a member is disqualified has the burden of proving it in case the facts are disputed (par. 58f, MCM). When a member is challenged for cause, the president usually asks him what he has to say about the matter and the member may make a statement without being sworn. The challenging side may then withdraw its challenge if the explanation is satisfactory, or it may be willing to submit the matter on the basis of the member's statement. If no satisfactory statement is made, it may offer evidence to support the challenge and may even examine the challenged member under oath. For form of oath, see par. 95, MCM, and app. 1, p. 146, infra). The accused and other witnesses, including members of the court, may testify on that issue. The opposing side may also introduce evidence and both sides may offer argument, creating literally a "trial within a trial."

After all matters to be considered on the issues have been presented to the court, it must proceed to determine whether the challenge should be sustained. Although challenges for cause are interlocutory questions (par. 79e, supra), they are not ruled upon by the president or law member, as are other such questions, but by the court itself in closed session and by secrete written ballot (AW 31; par. 58f, MCM). If, however, there is no doubt that all members of the court would vote unanimously to sustain the challenge were the matter submitted to them it is unnecessary to go through the formality of voting. In such case, the president may excuse the challenged member unless some objection is raised by the court or counsel (par. 58f, MCM). If, for example, a member who was challenged on the ground that he was decidedly hostile to the accused stated that he was convinced that the accused was a worthless soldier and that the service would be much better off without him, there would be no necessity of putting the challenge to a vote since it would doubtless be unanimously sustained. Except in such cases, the court must be closed and vote on the challenge.
5. Voting. When the court is closed to deliberate on the challenge, the challenged member must withdraw. Deliberation in closed session may properly include full and free discussion, after which the junior member will distribute and collect the ballots. The vote should be "sustained" or "not sustained." The junior member will count the votes and the president will check them and announce the numerical result to the court (AW 31). A challenge is not sustained unless a majority of the members present vote to sustain it. The court will reopen, the challenged member will resume his seat and the president will announce whether the challenge is sustained or not sustained. If sustained, the challenged member will be excused and withdraw.

6. Peremptory challenges. Normally each side exercises its peremptory challenge, if it desires to use it, after its challenges for cause have been disposed of, although it may challenge peremptorily before it challenges for cause, or during challenges for cause. Such a challenge cannot be made after the accused has been arraigned, except as to a new member detailed after the beginning of the trial. Any member of the court may be challenged peremptorily except the law member (AW 18; par. 58d, MCM). No ground or reason for such a challenge need exist. It is simply an arbitrary right to remove a member from the court. When peremptorily challenged, the member must be excused at once by the president. Only one peremptory challenge may be exercised by each side, i.e., the prosecution and the defense (AW 18). Two or more joint defendants have only one such challenge between them (par. 58d, MCM). However, each defendant in a common trial may exercise one peremptory challenge.

7. Action after challenges. After all challenges have been disposed of, the court will be rearranged, if that has become necessary because one or

more members were excused upon challenge. The court will then be sworn (AW 19; par. 61, MCM), and is then ready to proceed with the charges.
85. ARRAIGNMENT AND CONTINUANCES. The trial judge advocate will read the charges and specifications,including the signature of the accuser, and then ask the accused how he pleads to each specification and charge (par. 62, MCM). The accused is thereby arraigned. The proper time for making motions and special pleas is after arraignment. Thus, if a motion for a continuance is made at the start of the case, the court should normally defer action on the motion until after the accused has been arraigned (par. 52c, MCM). The right to prepare his defense is a fundmental right to which every accused is entitled. If reasonable cause is shown, an application to have the proceedings continued should be granted after arraignment (par. 52a, MCM). The grounds for continuance are set forth in par. 52b, MCM. Whether the request for a continuance is reasonable is a question of judgment depending on the facts and circumstances in each particular case. Occasion for granting a continuance may also arise later in the course of trial as, for example, where a specification is later amended, or where an expected witness is suddenly unable to appear.

86. PLEAS.

    1. General. After arraignment the accused will plead, i.e., make his answer to the charges, usually through the defense counsel, rather than by stating them himself. The order usually followed in case of several charges and specifications, is to plead to the first, second,etc., specification to the first charge, then to the first charge, and so on with the rest. (See apps. 1, pp. 148-149, and 2, p. 203, infra.) He may at once plead "guilty" or "not guilty" or, he may, by way of special plea or motion, raise objections to being tried at all, on all or some of the specifications and charges, or he may remain silent. He may make special pleas to some specifications and charges and plead "guilty" or "not guilty" to the others.

    2. Special pleas. A special plea is an objection to trial before the court on all or some of the charges or specifications on the ground, for example, that the court has no jurisdiction, or that the specification or charge is defective, or that trial is completely barred by the statute of limitations or by former trial for the same offense. Special pleas are discussed in paragraphs 64 through 69, MCM. Where the accused has made a special plea to a particular specification or charge, that plea must be disposed of before the accused is required to plead to the merits of the case. Thus, if there were a single specification or charge alleging absence without leave and the accused pleaded the statute of limitations in bar of trial, i.e., contended that he could not be tried for that offense because it was committed more than 2years before he was arraigned (AW 39), the court could not proceed to the trial until the plea was disposed of. If the plea were overruled, then the accused would be required to plead

further. If the plea were sustained, the trial could not proceed. The court would adjourn and the record of trial up to that pont would be prepared and forwarded to the reviewing authority. If, however, there were two or more offenses and a special plea was sustained to one, the trial would proceed as to the charge or charges remaining, and at the conclusion of the trial the entire record would be forwarded to the reviewing authority. The sustaining of a special plea does not, of course, mean that the accused has been found not guilty. If the reviewing authority disagrees with the court's ruling, he may return the record of trial to the court by indorsement or letter with directions to reconvene , overrule the plea, and proceed with the trial on the merits. A ruling on a special plea is an interlocutory question which the law member or president rules on subject to the objection of any member. (See pars. 79c and 80c, supra.)
3. Pleas to the merits. If the accused has no special pleas, or if any special pleas he makes are overruled, he must answer to the specification and charge by pleading "guilty" or "not guilty," or guilty in part but not guilty of the rest (as, for example, in a trial on charges of desertion, by pleading guilty of absence without leave but not guilty of desertion). If he remains silent or refuses to plead, the court will proceed as if he had pleaded not guilty (par. 70, MCM). ALthough the defense counsel is under a duty to explain to the accused the meaning and effect of a plea of guilty (par. 45b, MCM), the court should, nevertheless, satisfy itself, when such a plea is made, that the accused does understand the consequences of pleading guilty. In case of doubt the law member or president should make an appropriate explanation or statement to the accused. A form for such statement may be found in appendix 1, p. 149, infra. The same duty as to explanation exists if an accused pleads guilty to an offense lesser than, but included in the offense charged, such as a plea of guilty to absence without leave on a charge of desertion. If any question arises as to whether accused intends to plead guilty or not guilty, or if he pleads guilty and then at any stage of the proceedings makes a statement, sworn or unsworn, inconsistent with his plea, the court should enter a plea of not guilty. Thus, if accused pleads guilty to larceny, but claims that he was so drunk at the time he didn't know what he was doing,his statement is inconsistent with his having had a specific intention to steal the property which is necessary to establish larceny. Consequently the case should be treated as though a plea of not guilty has been entered.
87. OPENING STATEMENTS. After all preliminary objections, motions and special pleas have been disposed of, and the accused has pleaded "guilty" or "not guilty" to all or some of the charges, the trial proper is ready to proceed. before calling any witnesses, the trial judge advocate may make an opening statement, that is, a brief and clear statement of the issues in the case and of the testimony which is to be offered to prove

the charges (par. 75b, MCM). Such a statement is not required, and in a minor case or one where the issues are few and not complex, probably serves little purpose. In all cases of difficulty or importance, however, a simple concise statement renders the issues intelligible at the outset and enables the court to follow the testimony more readily. The statement must be factual, omitting all argument and any reference to matter which will not be properly proved. For example, in the case of Private Bark (app. 2, infra) the trial judge advocate might state: "The prosecution will show that on the morning of 28 September, the accused refused to go out on the drill field and drill when ordered to do so by his commanding officer, Lieutenant Loganby, saying that he was sick of the Army and would not do any more work; that he was at once placed in confinement in the post stockade by order of Lieutenant Loganby; that on the afternoon of that day, he escaped from confinement. The prosecution will further show that he remained absent without leave until the 26th of November when he was arrested in Charleston, South Carolina, by Sergeant Sellins, a military policeman. Through the testimony of Sergeant Sellins, we shall show that the accused stated at the time he was arrested that he wasn't going back to the Army." The defense counsel may also make an opening statement, usually after the prosecution has concluded its case and before any defense witnesses are called (par. 75c, MCM).
88. INTRODUCTION OF EVIDENCE AND EXAMINATION OF WITNESSES.

    1. In general. After his opening statement, if any, the trial judge advocate will proceed to call and examine his witnesses. If the accused pleads guilty, he can be convicted on the basis of his plea without any evidence being presented. However, even where there is a plea of guilty, the trial judge advocate should present some evidence to the court on all the elements of the offense, although, of course, since there is no dispute, he need not prove the the case in the same detail and with the same completeness as if the accused had pleaded not guilty.

    2. Calling and qualifying of witnesses. Although court-martial proceedings are usually open to the public (par. 49c, MCM), witnesses should be excluded from the court room until called to testify (par. 121, MCM). The assistant trial judge advocate will ordinarily summon into the court room witnesses for both prosecution and defense. If the witness is in the military service he will proceed to the witness chair, salute the president, and raise his right hand while the trial judge advocate, or his assistant, administers the oath (AW 19), after which he is seated. The trial judge advocate asks all witnesses, for the defense as well as for the prosecution, the preliminary question as to their identity and as to whether they know the accused and who he is. (See app. 1, p. 150, infra.) If the witness is a prosecution witness, the trial judge advocate will proceed to examine him; if a witness for the defense, the defense counsel will assume the direct examinations. At the conclusion of his testimony,

the witness will be excused by the president, whom he again salutes before leaving. If the accused testifies, the prosecution will ask him his name,grade, organization and station, and whether he is the accused, after which the defense assumes the direct examination.
3. Order of testimony. The trial judge advocate should be allowed to introduce his evidence in such order as he thinks fit (par. 41b, MCM), although he should endeavor to present the case in a logical fashion. The order of examining a witness is direct examination by the party calling him, cross-examination by the other side, redirect examination, recross-examination, and then questions by the court (par. 121a, MCM).

4. Direct examination. The object of direct examination is to present to the court by witnesses a word picture of facts proving or tending to prove the contentions of the side calling them. Leading questions, i.e., questions which suggest the answer, are not ordinarily permitted on direct examination (par. 121a, MCM). Careful preparation will enable counsel to know what questions to ask and how to ask them to avoid objections. it may be well for the beginner to write out all questions he proposes to ask on direct examination, and even counsel with experience should make a summary of the evidence to prove by each witness.

5. Cross-examination. For a discussion of the rules of cross-examination, see paragraph 121b, MCM. Cross-examination should not be undertaken at all unless it is believed that some advantage can be gained thereby. If an adverse witness tells a straightforward, consistent story on direct examination and no reason appears to doubt his credibility, nothing can be gained by cross-examination. Repetition will only serve to strengthen the witness in the eyes of the court, and matter overlooked on direct examination and adverse to the cross-examiner may often be brought out. If, however,the witness contradicts himself or other witnesses, appears uncertain in his knowledge, or may be impeached by a prior inconsistent statement or a bad general reputation for truth and veracity, then cross-examination is indicated. leading question are, of course, proper on cross-examination.

6. Examination by court. After examination by counsel for both sides has been completed, the trial judge advocate will ask if there are any questions by the court (par. 121b, MCM). The law member, or president, if there be none,should not hesitate to stop improper inquiry even without objection by counsel as the parties are often disinclined to object to question asked by members of the court (par. 75a, MCM, and app. 2, this manual).

7. Objections. Counsel should make timely objections to the admission of any incompetent or otherwise improper evidence that might be injurious to their side of the case. An objection should be specific, stating the particular ground upon which it is made. Both defense counsel and trial judge advocate have a duty to assist the court in keeping the trial free from error. They should not, however, interrupt the proceedings with frequent objections, even though technically sound, in trivial points

not damaging to their side, as this only serves to delay the trial and may antagonize the court.
89. MOTION FOR FINDINGS OF NOT GUILTY. After the prosecution has presented all its evidence and rested, the defense may make a motion for findings of not guilty as to any offense charged. This motion is in effect a request to the court to acquit the accused because the prosecution has failed to prove all the necessary elements of the offense. After the motion has been made and both sides have been afforded the opportunity to argue, the court must determine whether there is some substantial evidence of every element of the offense. So long as there is some evidence of each element, even though contradicted by stronger evidence, the motion should be denied. Moreover, even though the evidence is insufficient to establish the offense charged, if it proves any lesser included offense, the motion should be denied. If, for example, in a trial for desertion the prosecution established absence without leave but failed to offer any evidence of an intent to desert, amotion for findings of not guilty of desertion should not be granted because the lesser included offense of absence without leave has been established. A motion for findings of not guilty is an interlocutory question rules on initially by the law member or president subject to objection by any other member. (See pars. 79c, 80c, supra.) If the motion is granted, the court at once announces that the accused is acquitted and the trial is concluded. Although the motion should be made when it appears that there is no available evidence to prove the prosecution's case, it often serves only to call attention to the prosecution's neglect to present evidence which can be obtained, in which event the court may properly permit or require the trial judge advocate to reopen the case and produce such available evidence (71d, MCM).

90. ARGUMENTS. Both the prosecution and the defense may make arguments to the court. After all evidence is in and both sides have rested, the prosecution has the right to open and, if argument for the defense is made, to close (par. 77, MCM). If however, the prosecution waives opening argument, the defense too may waive argument, in which event the prosecution will be precluded from arguing. A well presented closing argument will aid the court in its deliberations, particularly if the charges are numerous or complex, or the evidence has been difficult to follow. A closing argument should be a clear summation of the testimony indicating in what respects it favors that side. Oratory, strong protestations of the guilt or innocence of accused, and tricks of showmanship are generally ineffective before courts-martial and should be avoided. As in all phases of presenting the case, both the trial judge advocate and defense counsel should conduct themselves with the courtesy, dignity, and forthrightness necessary to the proper performance of their important military duties. After arguments

are concluded, the court will be closed to deliberate on its findings. (See ch. 15, infra.)
91. JOINT AND COMMON TRIALS.

    1. Joint trials. Where two or more persons join in the commission of a crime or offense, they may be charged jointly. (See par. 24d, supra.) Persons so charged are jointly tried, that is, there is only one trial and one record of the proceedings. After the arraignment one or more of the joint accused may make a motion to sever, that is, to be tried separately. Among the principal grounds for such a motion are the fact that the defenses of the various accused are antagonistic to one another, or that one of the accused desires to call another of the accused as a witness. If the court grants the motion, it will decide which of the accused will first be tried and amend the specification so as to eliminate the reference to the party who is not to be tried at that time (71b, MCM). If the motion is not granted or if all accused do not move to sever, the trial proceeds as a joint trial. Each of the accused must in general be accorded every right and privilege he would have had if he had been tried separately (40c, MCM). However, the defense has only one peremptory challenge, no matter how many joint accused there may be. Both court and counsel must be careful to note evidence which is admissible against only one or some joint accused, and consider it only as against such of the accused as it applies to. If, for example, a written confession obtained from one accused is offered in evidence, the trial judge advocate should state that it is offered against that accused only, and the court should be cautioned against considering it against any coaccused. So, took, out-of-court statements of one coconspirator after the common design has terminated (par. 114c, MCM) and unsworn statements at the trial which are not evidence (par. 76, MCM), are only admissible against the accused who made them. However, one joint accused may always testify at the trial against another (par. 114c, MCM). If the defense counsel finds that the defenses of joint accused whom he has been detailed to defend are inconsistent, e.g., if each attempts to cast the blame on the other, he should make application to the reviewing authority to have each represented by separate defense counsel. Separate findings and sentences must be made as to each accused, (See pars. 108, 115, infra.)

    2. Common trials. Two or more accused may be jointly tried only if they are charged jointly. They can be so charged only if the offense is one which more than one person can commit. (See par. 24d, supra.) Two or more persons may each commit an offense which cannot be considered joint, but, if committed at the same time and place, the evidence and witnesses may be the same as to each. In such circumstances, the separate charges against the several accused may be tried together at a common trial. This may be done, however, only if the appointing authority so directs and no one of the accused objects. The

object of having a common trial is one of convenience, to avoid having the same evidence presented at several trials and the preparation of several separate records. Since the charges are separate, each accused is entitled to all the rights he would have had if the charges had not been combined, including the right to a peremptory challenge, the situation differing in this respect from that of a joint trial. Separate findings and sentences must, of course, be made as to each accused. Although a single record of trial is prepared, separate court-martial orders are issued as to each of the accused. (See par. 144n, infra.)

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