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

cise a peremptory challenge before the examination
of members and determination of any challenges for
cause has been completed. Ordinarily the trial counsel
shall enter any peremptory challenge before the
defense.
Discussion
Generally, no reason is necessary for a peremptory challenge. But
see Batson v. Kentucky 476 U.S. 79 (1986); United States v.
Curtis, 33 M.J. 101 (C.M.A. 1991), cert. denied, 112 S.Ct. 1177
(1992); United States v. Moore, 28 M.J. 366 (C.M.A. 1989);
United States v. Santiago-Davilla, 26 M.J. 380 (C.M.A. 1988).
(2) Waiver. Failure to exercise a peremptory chall
e n g e w h e n p r o p e r l y c a l l e d u p o n t o d o s o s h a l l
waive the right to make such a challenge. The military
judge may, for good cause shown, grant relief
from the waiver, but a peremptory challenge may
n o t b e m a d e a f t e r t h e p r e s e n t a t i o n o f e v i d e n c e
before the members has begun. However, nothing in
this subsection shall bar the exercise of a previously
unexercised peremptory challenge against a member
newly detailed under R.C.M. 505(c)(2)(B), even if
presentation of evidence on the merits has begun.
Discussion
When the membership of the court-martial has been reduced
below a quorum (see R.C.M. 501) or, when enlisted members
have been requested, the fraction of enlisted members has been
reduced below one-third, the proceedings should be adjourned
and the convening authority notified so that new members may be
detailed. See R.C.M. 505. See also R.C.M. 805(d) concerning
other procedures when new members are detailed.
(h) Special courts-martial without a military judge.
In a special court-martial without a military judge,
the procedures in this rule shall apply, except that
challenges shall be made in the presence of the
members and a ruling on any challenge for cause
shall be decided by a majority vote of the members
upon secret written ballot in closed session. The
challenged member shall not be present at the closed
session at which the challenge is decided. A tie vote
on a challenge disqualifies the member challenged.
Before closing, the president shall give such instructions
as may be necessary to resolve the challenge.
Each challenge shall be decided separately, and all
unexcused members except the challenged member
shall participate. When only three members are present
and one is challenged, the remaining two may
R.C.M. 913(b)
decide the challenge. When the president is challenged,
the next senior member shall act as president
for purposes of deciding the challenge.
(i) Definitions.
( 1 ) M i l i t a r y j u d g e . F o r p u r p o s e o f t h i s r u l e ,
“military judge” does not include the president of a
special court-martial without a military judge.
(2) Witness. For purposes of this rule, “witness”
includes one who testifies at a court-martial and
anyone whose declaration is received in evidence for
any purpose, including written declarations made by
affidavit or otherwise.
Discussion
For example, a person who by certificate has attested or otherwise
authenticated an official record or other writing introduced in
evidence is a witness.
(3) Investigating officer. For purposes of this rule,
“investigating officer” includes any person who has
investigated charges under R.C.M. 405 and any person
who as counsel for a member of a court of
inquiry, or otherwise personally has conducted an
investigation of the general matter involving the offenses
charged.
Rule 913. Presentation of the case on the
merits
(a) Preliminary instructions. The military judge may
give such preliminary instructions as may be appropriate.
If mixed pleas have been entered, the military
judge should ordinarily defer informing the members
of the offenses to which the accused pleaded guilty
until after the findings on the remaining contested
offenses have been entered.
Discussion
Preliminary instructions may include a description of the duties of
members, procedures to be followed in the court-martial, and
other appropriate matters.
Exceptions to the rule requiring the military judge to defer
informing the members of an accused’s prior pleas of guilty
include cases in which the accused has specifically requested, on
the record, that the military judge instruct the members of the
prior pleas of guilty and cases in which a plea of guilty was to a
lesser included offense within the contested offense charged in
t h e s p e c i f i c a t i o n . S e e R . C . M . 9 1 0 ( g ) , D i s c u s s i o n a n d R . C . M .
920(e), Discussion, paragraph 3.
(b) Opening statements. Each party may make one
II-105