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

App. 13 APPENDIX 13
Prior participation of defense
counsel
Inquiry concerning Article
38(b)
The defense counsel stated that no member of the defense had acted in a manner
which might tend to disqualify (him) (her) except as indicated below.
Note. If a member of the defense is unqualified or disqualified under R.C.M. 502(d), the record will show
that fact and the action taken under R.C.M. 901(d). Any inquiry or hearing into the matter should be summarized.
The military judge informed the accused of the rights concerning counsel as set forth
in Article 38(b) and R.C.M. 901(d).
The accused responded that he/she understood the rights with respect to counsel, and
that he/she chose to be defended by .
Personnel sworn The military judge and the personnel of the prosecution and defense who were not
previously sworn in accordance with Article 42(a) were sworn. The prosecution and
each accused were extended the right to challenge the military judge for cause.
Challenge: military judge The military judge was (not) challenged for cause (by ) (on the
ground that ).
Request for trial by military
judge alone
Note. The record should show the grounds for the challenge, a summary of evidence presented, if any,
and the action taken.
The military judge ascertained that the accused had been advised of his right to request
trial by the military judge alone and that the accused did (not) desire to submit
such a request.
Note. If the accused requests trial by the military judge alone, any written request will be included in the
record. The action on the request, whether oral or written, should be indicated as follows:
After ascertaining that the accused had consulted with defense counsel and had been
informed of the identity of the military judge and of the right to trial by members,
the military judge (approved) (disapproved) the accused’s request for trial by military
judge alone.
Note. If the military judge announced at this point that the court-martial was assembled, the record should
so reflect. If assembly was announced at a different point it should be so shown in the record.
Note. If the military judge disapproved the accused’s request, this fact and any reasons given for the disapproval
should be summarized.
Note. If the accused did not submit, or the military judge disapproved, a request for trial by military judge
alone, and if the accused is an enlisted person, the following should be included:
Request for enlisted members The trial counsel announced that the accused had (not) made a request in writing
that the membership of the court-martial include enlisted persons. The defense counsel
announced that the accused had been advised of the right to request enlisted
members and that the accused did (not) want to request enlisted members.
Convening authority
identified
A13-4
Note. If the accused did request enlisted members, the written request will be included in the record.
(Name, rank, and organization of convening authority) convened the court-martial
and referred the charges and specifications to it.
Note. In a special court-martial without a military judge, ordinarily the examination and challenges of
members would occur at this point. The format used below for examination and challenges may be inserted
here as appropriate.