Chapter 11.
Defense Counsel
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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.
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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
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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.
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DUTIES BEFORE TRIAL.
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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.
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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.
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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
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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.
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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).
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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.)
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DUTIES DURING TRIAL.
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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
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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.
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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).
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DUTIES AFTER TRIAL.
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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
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prepare a clemency request in every case but only in the event that a good
reason exists therefor.
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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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