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

An assistant counsel who lacks the qualifications
necessary to serve as counsel for a party may not act
at a session in the absence of such qualified counsel.
If authorized by regulations of the Secretary concerned,
for purposes of Article 39(a) sessions solely,
the presence of counsel at Article 39(a) sessions
may be satisfied by the use of audiovisual technolog
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 t e c h n o l o g y . A t
least one qualified defense counsel shall be physically
present with the accused.
Discussion
See R.C.M. 504(d) concerning qualifications of counsel.
Ordinarily, no court-martial proceeding should take place if
any defense or assistant defense counsel is absent unless the
accused expressly consents to the absence. The military judge
may, however proceed in the absence of one or more defense
counsel, without the consent of the accused, if the military judge
finds that, under the circumstances, a continuance is not warranted
and that the accused’s right to be adequately represented
would not be impaired.
See R.C.M. 502(d)(6) and 505(d)(2) concerning withdrawal
or substitution of counsel. See R.C.M. 506(d) concerning the right
of the accused to proceed without counsel.
( d ) E f f e c t o f r e p l a c e m e n t o f m e m b e r o r m i l i t a r y
judge.
( 1 ) M e m b e r s . W h e n a f t e r p r e s e n t a t i o n o f e v i -
dence on the merits has begun, a new member is
detailed under R.C.M. 505(c)(2)(B), trial may not
p r o c e e d u n l e s s t h e t e s t i m o n y a n d e v i d e n c e
previously admitted on the merits, if recorded verbatim,
is read to the new member, or, if not recorded
verbatim, and in the absence of a stipulation as to
such testimony and evidence, the trial proceeds as if
no evidence has been presented.
Discussion
At a rehearing, the trier of fact is not bound by the sentence
previously adjudged or approved. The members should not be
advised of the sentence limitation under this rule. See R.C.M.
1005(e)(1). An appropriate sentence on a retried or reheard offense
should be adjudged without regard to any credit to which
the accused may be entitled. See R.C.M. 103(2) and R.C.M.
103(3) as to when a rehearing may be a capital case.
(2) Military judge. When, after the presentation of
evidence on the merits has begun in trial before
military judge alone, a new military judge is detailed
under R.C.M. 505(e)(2) trial may not proceed unless
t h e a c c u s e d r e q u e s t s , a n d t h e m i l i t a r y j u d g e a p -
R.C.M. 806(b)(1)
proves, trial by military judge alone, and a verbatim
record of the testimony and evidence or a stipulation
thereof is read to the military judge, or the trial
proceeds as if no evidence had been presented.
Rule 806. Public trial
(a) In general. Except as otherwise provided in this
rule, courts-martial shall be open to the public. For
purposes of this rule, “public” includes members of
both the military and civilian communities.
Discussion
Because of the requirement for public trials, courts-martial must
be conducted in facilities which can accommodate a reasonable
number of spectators. Military exigencies may occasionally make
attendance at courts-martial difficult or impracticable, as, for example,
when a court-martial is conducted on a ship at sea or in a
unit in a combat zone. This does not violate this rule. However,
such exigencies should not be manipulated to prevent attendance
at a court-martial. The requirements of this rule may be met even
though only servicemembers are able to attend a court-martial.
Although not required, servicemembers should be encouraged to
attend courts-martial.
When public access to a court-martial is limited for some
reason, including lack of space, special care must be taken to
avoid arbitrary exclusion of specific groups or persons. This may
include allocating a reasonable number of seats to members of the
press and to relatives of the accused, and establishing procedures
for entering and exiting from the courtroom. See also subsection
(b) below. There is no requirement that there actually be spectators
at a court-martial.
The fact that a trial is conducted with members does not
make it a public trial.
(b) Control of spectators and closure.
(1) Control of spectators. In order to maintain the
dignity and decorum of the proceedings or for other
good cause, the military judge may reasonably limit
the number of spectators in, and the means of access
to, the courtroom, and exclude specific persons from
the courtroom. When excluding specific persons, the
military judge must make findings on the record
establishing the reason for the exclusion, the basis
for the military judge’s belief that exclusion is necessary,
and that the exclusion is as narrowly tailored
as possible.
Discussion
The military judge must ensure that the dignity and decorum of
the proceedings are maintained and that the other rights and
interests of the parties and society are protected. Public access to
a session may be limited, specific persons excluded from the
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