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

CHAPTER IX. TRIAL PROCEDURES THROUGH FINDINGS
Rule 901. Opening session
(a) Call to order. A court-martial is in session when
the military judge so declares.
Discussion
The military judge should examine the charge sheet, convening
order, and any amending orders before calling the initial session
to order.
Article 35 provides that in time of peace, no proceedings,
including Article 39(a) sessions, may be conducted over the accused’s
objection until five days have elapsed from the service of
charges on the accused in the case of a general court-martial. The
period is three days for a special court-martial. In computing
these periods, the date of service and the date of the proceedings
are excluded. Holidays and Sundays are not excluded. Failure to
object waives the right to the waiting period, but if it appears that
the waiting period has not elapsed, the military judge should
bring this to the attention of the defense and secure an affirmative
waiver on the record.
(b) Announcement of parties. After the court-martial
is called to order, the presence or absence of the
p a r t i e s , m i l i t a r y j u d g e , a n d m e m b e r s s h a l l b e
announced.
Discussion
If the orders detailing the military judge and counsel have not
been reduced to writing, an oral announcement of such detailing
is required. See R.C.M. 503(b) and (c).
(c) Swearing reporter and interpreter. After the personnel
have been accounted for as required in subs
e c t i o n ( b ) o f t h i s r u l e , t h e t r i a l c o u n s e l s h a l l
announce whether the reporter and interpreter, if any
is present, have been properly sworn. If not sworn,
the reporter and interpreter, if any, shall be sworn.
Discussion
See R.C.M. 807 concerning the oath to be administered to a court
reporter or interpreter. If a reporter or interpreter is replaced at
any time during trial, this should be noted for the record, and the
procedures in this subsection should be repeated.
(d) Counsel.
( 1 ) T r i a l c o u n s e l . T h e t r i a l c o u n s e l s h a l l a n -
nounce the legal qualifications and status as to oaths
of the members of the prosecution and whether any
member of the prosecution has acted in any manner
which might tend to disqualify that counsel.
(2) Defense counsel. The detailed defense counsel
shall announce the legal qualifications and status as
to oaths of the detailed members of the defense and
whether any member of the defense has acted in any
manner which might tend to disqualify that counsel.
Any defense counsel not detailed shall state that
c o u n s e l ’ s l e g a l q u a l i f i c a t i o n s , a n d w h e t h e r t h a t
counsel has acted in any manner which might tend
to disqualify the counsel.
(3) Disqualification. If it appears that any counsel
may be disqualified, the military judge shall decide
the matter and take appropriate action.
Discussion
Counsel may be disqualified because of lack of necessary qualifications,
or because of duties or actions which are inconsistent
with the role of counsel. See R.C.M. 502(d) concerning qualifications
of counsel.
If it appears that any counsel may be disqualified, the military
judge should conduct an inquiry or hearing. If any detailed
counsel is disqualified, the appropriate authority should be informed.
If any defense counsel is disqualified, the accused should
be so informed.
If the disqualification of trial or defense counsel is one
which the accused may waive, the accused should be so informed
b y t h e m i l i t a r y j u d g e , a n d g i v e n t h e o p p o r t u n i t y t o d e c i d e
whether to waive the disqualification. In the case of defense
counsel, if the disqualification is not waivable or if the accused
elects not to waive the disqualification, the accused should be
informed of the choices available and given the opportunity to
exercise such options.
If any counsel is disqualified, the military judge should ensure
that the accused is not prejudiced by any actions of the
disqualified counsel or any break in representation of the accused.
Disqualification of counsel is not a jurisdictional defect; such
error must be tested for prejudice.
If the membership of the prosecution or defense changes at
any time during the proceedings, the procedures in this subsection
should be repeated as to the new counsel. In addition, the military
judge should ascertain on the record whether the accused objects
to a change of defense counsel. See R.C.M. 505(d)(2) and 506(c).
( 4 ) I n q u i r y . T h e m i l i t a r y j u d g e s h a l l , i n o p e n
session:
(A) Inform the accused of the rights to be represented
by military counsel detailed to the defense;
or by individual military counsel requested by the
accused, if such military counsel is reasonably available;
and by civilian counsel, either alone or in asso-
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