Chapter XIV.
Courts-martial--Procedure

(Continued)

Introduction of Evidence

  1. COURTS-MARTIAL--PROCEDURE--Introduction of Evidence.

    1. General duties, etc., of court.--Where proffered evidence would be excluded on objection, the court may, and as a rule should, bring the matter to the attention of any party entitled, but failing, to object; except where such failure amounts to a waiver. See 126 (Waivers). Such action is particularly called for when improper questions are asked by a member of the court, or when improper testimony is elicited by questions of a member or of the court, the reasons for this being the natural hesitancy of the parties themselves to object to a question asked by a member of the court, and the weight likely to be given to testimony elicited through questions by the court or by a member. In the interest of justice a court may always of its own motion exclude inadmissible evidence.

      Rules of evidence are stated in 110-126 (Rules of evidence), and in various special connections throughout this manual; for example, in 130 (Desertion).

      The court is not obliged to content itself with the evidence adduced by the parties. Where such evidence appears to be insufficient for a proper determination of any issue or matter before it, the court may and ordinarily should, take appropriate action with a view to obtaining such available additional evidence as is necessary or advisable for such determination. The court may, for instance, require the trial judge advocate to recall a witness, to summon new witnesses, or to make investigation or inquiry along certain lines with a view to discovering and producing additional evidence.

      If at any time before the court announces an acquittal or imposes a sentence it appears to the court for any reason that additional evidence with respect to the accused's mental responsibility for an offense charged should be obtained in the interest of justice, the court will call for such additional evidence. The court may adjourn pending action on a request made by it to proper authority that the accused be examined by one or more medical officers and that such officer or officers be made available as witnesses. See 35c (Suspected insanity)

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      in this connection. A request, suggestion, or motion that additional evidence be called for by the court as contemplated herein may be made by any one of the personnel of the court, prosecution, or defense. The court may, in its discretion, give priority to evidence on such issue and may determine as an interlocutory question whether or not the accused was mentally responsible at the time of the commission of the alleged offense. See 78a (Reasonable doubt). If the court determines that the accused was not mentally responsible, it will forthwith enter a finding of not guilty as to the proper specification. Such priority should be given where the evidence on the matters set forth in the specification is voluminous or expensive to obtain and has little or no bearing on the issue of mental responsibility for such matters.

      The court, in its discretion, may direct that a document, although excluded as not admissible in evidence, be marked for identification and appended to the record for the consideration of the reviewing authority, and will so direct on request of the party offering the document.

      Where a document, which must or should be returned to the source from which it was obtained (e.g., an original record), is received in evidence or marked for identification, a suitable copy or extract copy thereof, certified as such by the trial judge advocate, will be substituted for such document so as to permit of such return.

      The court may in its discretion (through the president, a the law member if the president so directs) explain to the accused his right as to each specification, to remain silent, or to testify as a witness (see 120d and 121b), or to make an unsworn statement (see 76). Such explanation should be made if the court has any doubt that the accused fully understands his rights in the premises. The explanation is usually made after the prosecution has rested.

      The court should protect every witness from insulting or improper questions, harsh or insulting treatment, and unnecessary inquiry into his private affairs. The court should also forbid any question which appears to be intended merely to annoy a witness or which, though otherwise proper, is needlessly offensive in form.

    1. General duties, etc., of trial judge advocate.--As to preparation for trial, attendance of witnesses, sending out interrogatories for depositions, and swearing of witnesses, see 41, 97, 98, and 95, respectively.

      After the pleas the trial judge advocate will, to the extent required by the court, read the parts of this manual or of authoritative military precedents (see 128) that are pertinent to the definition, proof, and defense of the offenses charged.

      He may make an opening statement--that is, a brief statement of the issues to be tried and what he expects to prove--but will avoid

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      including or suggesting matters as to which no admissible evidence is available or intended to be offered. Ordinarily such a statement is made only immediately before the introduction of evidence for the prosecution, but in exceptional cases the court may, in its discretion, permit like statements to be made at later stages of the proceedings.

      On behalf of the prosecution he conducts the direct and redirect examination of the witnesses for the prosecution and the cross and recross examination of the witnesses for the defense. He will, unless the court otherwise directs, conduct the direct and redirect examination of witnesses for the court.

    1. General duties, etc., of counsel.--He may make an opening statement for the defense similar to that indicated in 75b. This statement is ordinarily made just after the prosecution has rested or immediately following the opening statement of the trial judge advocate; but in exceptional cases the court may, in its discretion, permit it or other like statements to be made at a later stage or other stages of the proceedings.

      On behalf of the defense he conducts the direct and redirect examination of the witnesses for the defense and the cross and recross examination of the witnesses for the prosecution and of the witnesses for the court.

      As to preparation for trial, attendance of witnesses, and submission of interrogatories for depositions, see 45, 97, and 98, respectively.

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