2008 edition - Fort Sam Houston - U.S. Army
2008 edition - Fort Sam Houston - U.S. Army 2008 edition - Fort Sam Houston - U.S. Army
App. 8 APPENDIX 8 Oath of witness [Note 58. See R.C.M. 807.] MJ: Will the defense make an opening statement? DC: (No) (The defense will make its statement after the prosecution has rested.) (Yes. .) TC: The prosecution calls as its first witness . TC: Do you (swear) (affirm) that the evidence you give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth, (so help you God)? WIT: . Preliminary questions TC: (Are you (state name, grade, organization, station, and armed force) (state name and address, if civilian)?) (Please state your name (grade, organization, station, and armed force) (and address). WIT: . [Note 59. The address of witnesses should be omitted in appropriate cases, as where it might endanger the witness.] [Note 60. Except when an identification is inappropriate (e.g., when the witness is a laboratory technician) or where a foundation must be laid, Trial Counsel ordinarily should ask the witness to identify the accused.] TC: Do you know the accused? WIT: . [Note 61. If the witness answers affirmatively:] TC: Please point to the accused and state (his) (her) name. WIT: . TC: Let the record show that the witness pointed to the accused when stating (his) (her) name. Testimony [Note 62. Trial counsel should now conduct direct examination of the witness. See Mil. R. Evid. 611.] A8-14 TC: No further questions. MJ: , you may cross-examine. [Note 63. Defense counsel may cross-examine the witness.] DC: No (further) questions. [Note 64. The parties should be permitted to conduct such redirect and recross-examination as may reasonably be necessary. See Mil. R. Evid. 611. After the parties have completed their questioning, the military judge and members may ask additional questions. See Mil. R. Evid. 614. The members should be instructed on the procedures for questioning. Each member’s questions will be collected by the bailiff, if any, or trial counsel, marked as an Appellate Exhibit, examined by counsel for each side, and given to the military judge. If there are any objections, they should be raised at an Article 39(a) session or at a side-bar conference.]
Recess, adjournment, or Article 39(a) session [Note 65. After questioning of a witness is completed, the military judge should determine whether the witness will be excused temporarily or permanently. The military judge should advise the witness as follows.] MJ: thank you. You are (temporarily) excused. (Please wait (in the waiting room) ( )). (You are free to go.) As long as this trial continues, do not discuss your testimony or knowledge of the case with anyone except counsel. If anyone else tries to talk to you about the case, stop them and report the matter to one of the counsel. [Note 66. The witness will withdraw from the courtroom. See Mil. R. Evid. 615.] TC: The prosecution calls as its next witness . [Note 67. Trial counsel continues to present the prosecution case. If exhibits were admitted at an Article 39(a) session, trial counsel may, with the permission of the military judge, read or present the evidence to the court-martial.] [Note 68. In the event of a recess, continuance, adjournment, or Article 39(a) session the military judge should announce when the court-martial will reconvene, and should instruct or remind the members not to discuss the case with anyone, not to consult legal references, and to avoid exposure to matters relating to the case.] Reopening [Note 69. When the court-martial is reopened, the following announcement is appropriate.] MJ: The court-martial will come to order. TC: The members, the parties, and the military judge are all present. Prosecution rests TC: The prosecution rests. Presentation of evidence by defense GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL [Note 70. A motion for a finding of not guilty may be raised at this point. See R.C.M. 917. Any such motion should be made outside the presence of the members. If a motion is made in the presence of members, and is denied, the military judge should instruct the members that the military judge applies a different standard in ruling on the motion than they must apply in reaching their findings, and that the denial must have no effect on their deliberations and findings.] [Note 71. Defense counsel may make an opening statement if one was not made previously.] DC: The defense calls as its first witness . [Note 72. Trial counsel administers the oath to each witness. Defense counsel conducts direct examination, and trial counsel cross-examination of each witness. Redirect and recross-examination may be conducted as appropriate. The military judge and members may question each witness. See note 64.] [Note 73. Defense counsel continues to present the defense case. If exhibits were admitted at an Article 39(a) session, defense counsel may, with the permission of the military judge, read or present the evidence to the court-martial.] DC: The defense rests. Rebuttal and surrebuttal [Note 74. The parties may present evidence in rebuttal and surrebuttal. See R.C.M. 9l3(c)(l). After the parties complete their presentations, additional evidence may be presented when the military judge so directs. See R.C.M. 801(c), 9l3(c)(l)(F).] [Note 75. When a witness is recalled, the following is appropriate.] App. 8 TC: Are you the same who testified earlier in this court-martial? A8-15
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App. 8 APPENDIX 8<br />
Oath of witness [Note 58. See R.C.M. 807.]<br />
MJ: Will the defense make an opening statement?<br />
DC: (No) (The defense will make its statement after the prosecution has rested.)<br />
(Yes. .)<br />
TC: The prosecution calls as its first witness .<br />
TC: Do you (swear) (affirm) that the evidence you give in the case now in<br />
hearing shall be the truth, the whole truth, and nothing but the truth,<br />
(so help you God)?<br />
WIT: .<br />
Preliminary questions TC: (Are you (state name, grade, organization, station, and armed force)<br />
(state name and address, if civilian)?) (Please state your name (grade,<br />
organization, station, and armed force) (and address).<br />
WIT: .<br />
[Note 59. The address of witnesses should be omitted in appropriate cases, as where it might endanger<br />
the witness.]<br />
[Note 60. Except when an identification is inappropriate (e.g., when the witness is a laboratory technician)<br />
or where a foundation must be laid, Trial Counsel ordinarily should ask the witness to identify<br />
the accused.]<br />
TC: Do you know the accused?<br />
WIT: .<br />
[Note 61. If the witness answers affirmatively:]<br />
TC: Please point to the accused and state (his) (her) name.<br />
WIT: .<br />
TC: Let the record show that the witness pointed to the accused when stating<br />
(his) (her) name.<br />
Testimony [Note 62. Trial counsel should now conduct direct examination of the witness. See Mil. R. Evid. 611.]<br />
A8-14<br />
TC: No further questions.<br />
MJ: , you may cross-examine.<br />
[Note 63. Defense counsel may cross-examine the witness.]<br />
DC: No (further) questions.<br />
[Note 64. The parties should be permitted to conduct such redirect and recross-examination as may reasonably<br />
be necessary. See Mil. R. Evid. 611. After the parties have completed their questioning, the<br />
military judge and members may ask additional questions. See Mil. R. Evid. 614. The members should<br />
be instructed on the procedures for questioning. Each member’s questions will be collected by the bailiff,<br />
if any, or trial counsel, marked as an Appellate Exhibit, examined by counsel for each side, and<br />
given to the military judge. If there are any objections, they should be raised at an Article 39(a) session<br />
or at a side-bar conference.]
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