Courts-martial--Procedure before trial
Submission of and Action Upon Charges
- COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Submission of and Action Upon Charges--General.--In the ordinary case charges will be submitted and acted upon as follows:
Charges properly signed and sworn to (see 31) will be for-warded (see 32) to the commanding officer who, under A.W. 10, has immediate authority to appoint summary courts-martial for the command to which the accused belongs or pertains.
As a rule, the charges will be so forwarded through the commanding officer exercising immediate jurisdiction under A.W. 104 over the command which includes the accused. If so forwarded, such officer will, before transmitting the charges, take the action described in 33.
The officer referred to in a will take such action with respect to each offense charged as is within his authority and is deemed by him best in the interest of justice and discipline (see 34), provided:
First: No charge shall be recommended for trial by general court- martial unless, prior to such action, the thorough and impartial investigation thereof required by A.W. 70 (see 35a) shall have been made by an officer.
Second: If he also has general court-martial jurisdiction, he will refer no case for trial by general court-martial until the thorough and impartial investigation thereof required by A.W. 70 (see 35a) shall have been made by an officer and until the case has been referred to his staff judge advocate for consideration and advice. (See 35b.)
Third: No charge will ordinarily be referred for trial if he is satisfied that the accused is insane or was insane at the time of the offense charged. (See 35c.)
Any commanding officer, superior to the officer referred to in a, to whom the charges may be forwarded will take the action described in c subject to the same limitations.
Exceptional cases.--In exceptional cases where the accused is not, strictly speaking, under the command of any military authority inferior
to the War Department, for example, retired personnel not on active duty or military attaché, the general principles of this paragraph (30) are applicable; but the charges may, according to the particular circumstances, be transmitted either to the War Department or to the commanding officer of the territorial department, corps area, or district in which the accused may be.
- COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Submission of and Action Upon Charges--Signing and swearing to charges.--See first paragraph of A.W. 70. Charges and specifications will be signed and sworn to substantially as indicated on the form. (See App. 3.) Such of the data as to service, witnesses, etc., called for by the form as may be available will be included. In the absence of instructions by appointing or other authorities, only the original need be signed; but a suitable number of copies (usually two besides the original), depending on the probable disposition of the case, will ordinarily be prepared and forwarded if such facilities as typewriter and carbon paper are available.
Charges need not be sworn to if the person signing them believes the accused to be innocent, but deems trial advisable in the interest of the service as well as for the protection of the accused (e.g., in a case of homicide of an escaping prisoner which was apparently justified). In no case, however, should an accused be tried on unsworn charges over his objection.
- COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Submission of and Action Upon Charges-Forwarding charges.--Where it appears probable that the case will be disposed of either under A.W. 104 or by reference to a summary court-martial, the person preferring the charges need not forward them by letter of transmittal. Otherwise the charges will be so forwarded, and the letter will include or carry as inclosures a summary of the evidence on which the charges are based as derived or expected from each witness or other source. The signatures of witnesses to the summaries of their respective testimony will be obtained when practicable and when an undue delay in forwarding the charges will not result. In any case, all reasonably available documentary evidence (originals or admissible copies) will be forwarded with the charges unless, on account of the bulk of such evidence or other good reason, it is inadvisable to do so.
- COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Submission of and Action Upon Charges-iAction by commander exercising immediate jurisdiction under A.W. 104.--He will act under A.W. 104 with reference to such offenses as may properly be disposed of under that article. Specifications and charges thus disposed of will be lined out and initialed. In order that the meaning of the affidavit to the charges may not be changed, the numerical designation of charges and specifications as set forth in the affidavit will be made to correspond to
any renumbering made necessary by the elimination of any specification or charge. Any demand for trial made by an accused (see 107) will be noted and initialed opposite the proper specification.
As to offenses not disposed of under A.W. 104, he will proceed as follows: He will attach to the charges any available evidence of previous convictions; supply any missing data as to service, witnesses, etc., called for by the form (App. 3) that may be reasonably available; correct any errors in such data, initialing such corrections; and take appropriate action with respect to the restraint (see 20) of the accused. He will make no corrections or changes in the charges themselves. If practicable he will make or cause to be made an investigation of the charges (see 35). The report of the investigation in the case will be informal or formal, depending on whether or not in his opinion the case will probably be disposed of by the officer referred to in 30a, otherwise than by forwarding to his superior. The report will accompany the charges. He may act under A.W. 104 after the investigation.
- COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Submission of and Action Upon Charges--Action by officer exercising court-martial jurisdiction.--He will act under A.W. 104 with reference to such offense as may properly be disposed of under that article. Specifications and charges thus disposed of, and specifications and charges which are dismissed as trivial or for other reasons, will be lined out and initialed. In order that the meaning of the affidavit to the charges may not be changed, the numerical designations of charges and specifications as set forth in the affidavit will be made to correspond to any renumbering made necessary by the elimination of any specification or charge. Any demand for trial made by an accused (see 107) will be noted and initialed if charges are forwarded. Charges forwarded or referred for trial and accompanying papers should be free from defect of form or substance, but delays incident to the return of papers for correction of defects that are not substantial will be avoided. Obvious errors may be corrected and the charges may be redrafted over the signatures thereon, provided the redraft does not involve any substantial change or include any person, offense, or matter not fairly included in the charges as received. Corrections and redrafts should be initialed by the officer making them.
He will make or cause to be made any necessary investigation (see 30c), but will not investigate charges signed by himself if another officer is available. If the charges were investigated before reaching him, another investigation need not be made unless there is reason to
believe that further investigation would aid in the administration of justice.
With due regard to the policies of the War Department and other superiors and subject to jurisdictional limitations, charges, if tried at all, should be tried by the lowest court that has power to adjudge an appropriate and adequate punishment. In this connection see 14 as to the authority to cause a capital case to be tried by special court-martial. The objections to referring charges for a serious military offense, such as desertion, to an inferior court should be considered. In this connection it should be remembered that the retention in the Army of thieves and persons guilty of other offenses involving moral turpitude injuriously reflects upon the good name of the service and its self-respecting personnel. Ordinarily a specification as to which the statute of limitations may apparently be successfully pleaded should not be referred for trial.
Action will be taken promptly in any case. See in this connection 26 (Penalty for delay). When a person is held for trial by general court-martial the commanding officer will within eight days after the accused is arrested or confined, if practicable, forward the charges to the officer exercising general court-martial jurisdiction and furnish the accused a copy of such charges. If the same is not practicable, he will report to superior authority the reasons for delay. (A.W. 70.)
Charges referred for investigation or trial or forwarded should be accompanied by related papers and any available evidence of previous convictions. The matter of forwarding copies of charges and related papers may be regulated by an appointing authority or his superiors; otherwise such copies as will probably be required will, if practicable, accompany the charges. When charges are forwarded a recommendation as to the disposition of the case will be included. In desertion cases a commanding officer should before deciding upon his action or recommendation take into consideration the character and prior service of the accused. He, for instance, should not hesitate in a proper case to recommend restoration to duty. The usual form of indorsement referring charges for trial is shown on the form (App. 3). The signed indorsement referring charges will be on the original charge sheet and may include any proper instructions; for instance, a direction that the charges be tried with certain other charges against the accused or tried with the law member present. Where the only officer present with a command decides to try the charges as summary court-martial of that command no indorsement is required.
- COURTS-MARTIAL--PROCEDURE BEFORE TRIAL--Submission of and Action Upon Charges--Investigation of charges; reference to staff judge advocate; suspected insanity.
- Investigation of Charges--Statutory requirements; introductory statement.--No charge will be referred to a general court-martial for trial until after a thorough and impartial investigation thereof shall have been made. This investigation will include inquiries as to the truth of the matter set forth in said charges, form of charges, and what disposition of the case should be made in the interest of justice and discipline. At such investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after such investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides. (A.W. 70.)
No witness shall be compelled to incriminate himself or to answer any question the answer to which may tend to incriminate him, or to answer any question not material to the issue when such answer might tend to degrade him. (A.W. 24.)
What follows in this paragraph (35a) is primarily intended to indicate a proper procedure in the more usual cases. Variations to save labor, time, or expense, or designed to meet other cases, or exceptional or local conditions, or for any other good reason, are not only permissible but should be adopted, provided the spirit and purpose of the statutory requirements quoted above are carried out. The investigation should be prompt, dignified, and military. It should also be as brief as is consistent with thoroughness and fairness, and should, therefore, not include any examination or cross-examination into matters not essential to determine the necessity of trial.
Instructions.--At the outset of the investigation the accused will be informed of the following: The offenses charged against him; the names of the accuser and of the witnesses, as far as then known to the investigating officer; the fact that the charges are about to be investigated; his right to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation; his right to have the investigating officer examine available witnesses requested by him; and his right to make or submit a statement in any form subject to the risk of having such statement used against him.
All available witnesses who appear to be reasonably necessary for a thorough and impartial investigation will be called and examined in the presence of the accused. Ordinarily application for the
attendance of any witness subject to military law will be made to such witness's immediate commanding officer. The decision of the officer exercising summary court-martial jurisdiction over the command to which the witness belongs as to availability is final. There is no provision for compelling the attendance of or for paying civilian witnesses. Witnesses need not be sworn or required to sign their statements, but either or both will be done if the investigating officer deems such action advisable or is so instructed.
Where the investigating officer makes known to the accused the substance of the testimony expected from a witness as ascertained by written statement of the witness, interview with the witness, or other similar means, and the accused states that he does not desire to cross-examine such witness, the witness need not be called even if available. Where a witness requested by the accused is available, such witness need not be called if the accused withdraws his request upon being informed that the testimony expected by the accused from such witness will be regarded as having been actually taken.
To the extent required by fairness to the Government and the accused, documentary evidence and statements of non-available witnesses will be shown, or the substance thereof will be made known, to the accused.
Unless the investigating officer is required to make a formal report or unless the probable disposition of a case is such that a formal report should be made (e.g., when the investigating officer himself recommends action involving a forwarding of the charges), an informal report is sufficient.
Unless otherwise indicated by him, the submission of his report by an investigating officer will be regarded as a statement to the best of his knowledge and belief that the investigation of the matters set forth in the charges was made in substantial conformity with all requirements; that the matters set forth in the charges on which he recommends trial are true, and that such charges are in proper form.
A formal report by indorsement or letter will include, or carry as inclosures or by reference to other papers returned or submitted by him with the report:
First. His recommendation as to what disposition should be made of the case, and a statement of any reasonable ground for the belief that the accused is, or was at the time of an offense, mentally defective, deranged, or abnormal.
Second. A statement of the substance of the testimony taken on both sides, including any stipulated testimony, e.g., where accused withdraws a request for a witness upon being told that the testimony expected would be regarded as taken.
Third. Any statements, documents, or other matters considered by him in reaching his conclusions or making his recommendations, or copies or the substance of such statements, etc.
An informal report according to circumstances or to instructions of superior authority may be orally made, or made by a brief memorandum indorsement, notations on the charge sheet, or other suitable means, and, however made, need include only the first and second items of the formal report in greatly abbreviated form, but the sources of any material evidence for either side which were not shown in the papers as received by the investigating officer should be reported.
- Reference to Staff Judge Advocate.--Subject to the provisions of this paragraph (35b) reference to a staff judge advocate will be made and his advice submitted in such manner and form as the appointing authority may direct.
No appointing authority shall direct the trial of any charge by general court-martial until he has considered the advice of his staff judge advocate based on all the information relating to the case, including any report made under 35c, which is reasonably available at the time trial is directed.
The advice of the staff judge advocate shall include a written and signed recommendation of the action to be taken by the appointing authority. Such recommendation will accompany the charges if referred for trial. (See 41d.)
- Suspected Insanity.--An appointing authority may, in his discretion, suspend action on the charges pending the consideration of the report of one or more medical officers, or the report of a board convened under AR 600-500 in a case where that regulation applies and it is practicable to convene such a board. The medical officers or board will be fully informed of the reasons for doubting the sanity of the accused and, in addition to other requirements, should ordinarily be required to include in the report a statement, in as non-technical language as practicable, of the mental condition of the accused both at the time of the offense and at the time of the examination. The appointing authority may, in his discretion, attach the report to the charges if referred for trial or forwarded.
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