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

R.C.M. 812
Rule 812. Joint and common trials
In joint trials and in common trials, each accused
shall be accorded the rights and privileges as if tried
separately.
Discussion
See R.C.M. 307(c)(5) concerning preparing charges and specifications
for joint trials. See R.C.M. 601(e)(3) concerning referral of
charges for joint or common trials, and the distinction between
the two. See R.C.M. 906(b)(9) concerning motions to sever and
other appropriate motions in joint or common trials.
In a joint or common trial, each accused may be represented
by separate counsel, make challenges for cause, make peremptory
c h a l l e n g e s ( s e e R . C . M . 9 1 2 ) , c r o s s - e x a m i n e w i t n e s s e s , e l e c t
whether to testify, introduce evidence, request that the membership
of the court include enlisted persons, if an enlisted accused,
and, if a military judge has been detailed, request trial by military
judge alone.
Where different elections are made (and, when necessary,
approved) as to court-martial composition a severance is necessary.
Thus, if one co-accused elects to be tried by a court-martial
composed of officers, and a second requests that enlisted members
be detailed to the court, and a third submits a request for trial
by military judge alone, which request is approved, three separate
trials must be conducted.
In a joint or common trial, evidence which is admissible
against only one or some of the joint or several accused may be
c o n s i d e r e d o n l y a g a i n s t t h e a c c u s e d c o n c e r n e d . F o r e x a m p l e ,
when a stipulation is accepted which was made by only one or
some of the accused, the stipulation does not apply to those
accused who did not join it. See also Mil. R. Evid. 306. In such
instances the members must be instructed that the stipulation or
evidence may be considered only with respect to the accused with
respect to whom it is accepted.
Rule 813. Announcing personnel of the
court-martial and accused
(a) Opening sessions. When the court-martial is cal-
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led to order for the first time in a case, the military
judge shall ensure that the following is announced:
( 1 ) T h e o r d e r , i n c l u d i n g a n y a m e n d m e n t , b y
which the court-martial is convened;
(2) The name, rank, and unit or address of the
accused;
(3) The name and rank of the military judge, if
one has been detailed;
(4) The names and ranks of the members, if any,
who are present;
(5) The names and ranks of members who are
absent, if presence of members is required;
(6) The names and ranks (if any) of counsel who
are present;
(7) The names and ranks (if any) of counsel who
are absent; and
(8) The name and rank (if any) of any detailed
court reporter.
( b ) L a t e r p r o c e e d i n g s . W h e n t h e c o u r t - m a r t i a l i s
called to order after a recess or adjournment or after
it has been closed for any reason, the military judge
shall ensure that the record reflects whether all parties
and members who were present at the time of
the adjournment or recess, or at the time the courtmartial
closed, are present.
(c) Additions, replacement, and absences of personnel.
Whenever there is a replacement of the military
judge, any member, or counsel, either through the
a p p e a r a n c e o f n e w p e r s o n n e l o r p e r s o n n e l
previously absent or through the absence of personnel
previously present, the military judge shall ensure
the record reflects the change and the reason for
it.