2008 edition - Fort Sam Houston - U.S. Army

R.C.M. 804(c)(2)
(C) Afford the accused a continuing opportunity to return to
the courtroom upon assurance of good behavior. To this end, the
accused should be brought to the courtroom at appropriate intervals,
and offered the opportunity to remain upon good behavior.
(D) Ensure that the reasons for removal appear in the record.
(d) Voluntary absence for limited purpose of child
testimony.
(1) Election by accused. Following a determination
by the military judge that remote live testimony
of a child is appropriate pursuant to Mil. R. Evid.
611(d)(3), the accused may elect to voluntarily absent
himself from the courtroom in order to preclude
the use of procedures described in R.C.M. 914A.
( 2 ) P r o c e d u r e . T h e a c c u s e d ’ s a b s e n c e w i l l b e
conditional upon his being able to view the witness’
testimony from a remote location. Normally, transmission
of the testimony will include a system that
will transmit the accused’s image and voice into the
courtroom from a remote location as well as transmission
of the child’s testimony from the courtroom
to the accused’s location. A one-way transmission
may be used if deemed necessary by the military
judge. The accused will also be provided private,
contemporaneous communication with his counsel.
The procedures described herein shall be employed
unless the accused has made a knowing and affirmative
waiver of these procedures.
(3) Effect on accused’s rights generally. An election
by the accused to be absent pursuant to subsection
(c)(1) shall not otherwise affect the accused’s
right to be present at the remainder of the trial in
accordance with this rule.
(e) Appearance and security of accused.
(1) Appearance. The accused shall be properly
attired in the uniform or dress prescribed by the
m i l i t a r y j u d g e . A n a c c u s e d s e r v i c e m e m b e r s h a l l
wear the insignia of grade and may wear any decorations,
emblems, or ribbons to which entitled. The
accused and defense counsel are responsible for ensuring
that the accused is properly attired; however,
upon request, the accused’s commander shall render
such assistance as may be reasonably necessary to
ensure that the accused is properly attired.
Discussion
This subsection recognizes the right, as well as the obligation, of
an accused servicemember to present a good military appearance
at trial. An accused servicemember who refuses to present a
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proper military appearance before a court-martial may be compelled
to do so.
(2) Custody. Responsibility for maintaining custody
or control of an accused before and during trial
may be assigned, subject to R.C.M. 304 and 305,
and subsection (c)(3) of this rule, under such regulations
as the Secretary concerned may prescribe.
(3) Restraint. Physical restraint shall not be imposed
on the accused during open sessions of the
court-martial unless prescribed by the military judge.
Rule 805. Presence of military judge,
members, and counsel
(a) Military judge. No court-martial proceeding, except
the deliberations of the members, may take
place in the absence of the military judge, if detailed.
If authorized by regulations of the Secretary
concerned, for purposes of Article 39(a) sessions
solely, the presence of the military judge at Article
39(a) sessions may be satisfied by the use of audiov
i s u a l t e c h n o l o g y , s u c h a s v i d e o t e l e c o n f e r e n c i n g
technology.
(b) Members. Unless trial is by military judge alone
pursuant to a request by the accused, no court-martial
proceeding may take place in the absence of any
detailed member except: Article 39(a) sessions under
R.C.M. 803; examination of members under R.C.M.
912(d); when the member has been excused under
R.C.M. 505 or 912(f); or as otherwise provided in
R.C.M. 1102. No general court-martial proceeding
r e q u i r i n g t h e p r e s e n c e o f m e m b e r s m a y b e c o n -
ducted unless at least five members are present, or
in capital cases, at least 12 members are present
except as provided in R.C.M. 501(a)(1)(B), where
12 members are not reasonably available because of
physical conditions or military exigencies. No special
court-martial proceeding requiring the presence
of members may be conducted unless at least three
members are present except as provided in R.C.M.
9 1 2 ( h ) . E x c e p t a s p r o v i d e d i n R . C . M . 5 0 3 ( a ) ( 2 ) ,
w h e n a n e n l i s t e d a c c u s e d h a s r e q u e s t e d e n l i s t e d
members, no proceeding requiring the presence of
members may be conducted unless at least one-third
of the members actually sitting on the court-martial
are enlisted persons.
(c) Counsel. As long as at least one qualified counsel
for each party is present, other counsel for each
party may be absent from a court-martial session.