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

document is true. In this sense, a stipulation as to a document’s
contents is like a stipulation of expected testimony, and the rule
so treats it.
Otherwise, this subsection essentially restates paragraph 54 f(1)
and (2) of MCM, 1969 (Rev.). See also United States v. Bennett,
18 U.S.C.M.A. 96, 39 C.M.R. 96 (1969) and United States v.
Gerlach, supra for further discussion of the effects of stipulations.
If the parties fail to object to inadmissible matters in a stipulation,
this will normally constitute a waiver of such objection. Mil. R.
Evid. 103. Cf. United States v. Schell, 18 U.S.C.M.A. 410, 40
C.M.R. 122 (1969). See also Wigmore, supra at § 2592.
(f) Procedure. This subsection is based on the second paragraph
in paragraph 54 f(2) of MCM, 1969 (Rev.).
Rule 812 Joint and common trials
This rule is taken from paragraph 53 c of MCM, 1969
(Rev.). The rule itself substantially repeats the first sentence in
paragraph 53 c. The discussion refers to other rules dealing with
joint or common trials, and includes the examples discussed in
paragraph 53 c of MCM, 1969 (Rev.). It also incorporates a
statement on stipulations which appeared at paragraph 54 f(3) of
MCM, 1969 (Rev.), and a statement concerning severances from
paragraph 61 h of MCM, 1969 (Rev.). The rule does not change
current law.
Rule 813 Announcing personnel of the courtmartial
and accused
This rule is based on paragraph 61 c of MCM, 1969 (Rev.)
and is placed in Chapter 8 since the requirement for announcing
the presence or absence of parties usually recurs several times
during the trial. The rule has been rephrased to acknowledge the
responsibility of the military judge to ensure that the matters
covered are reflected in the record. Paragraph 61 c of MCM,
1969 (Rev.) required the trial counsel to make these announcements.
This rule leaves to the discretion of the military judge who
will make the announcements. The importance of requiring such
announcements to be made on the record is emphasized in United
States v. Nichelson, 18 U.S.C.M.A. 69, 39 C.M.R. 69 (1968).
CHAPTER IX. TRIAL PROCEDURE THROUGH
FINDINGS
Rule 901 Opening session
Introduction. R.C.M. 901 through 903 set out in chronological
order the procedures to be followed before arraignment. The
order need not be followed rigidly.
(a) Call to order. This subsection is based on the first sentence in
paragraph 61 b of MCM, 1969 (Rev.). The purpose of the subsection
is to establish a definite point to indicate when a courtmartial
is in session. The first paragraph in the discussion is taken
from paragraph 61 a of MCM, 1969 (Rev.), but the present
provision has been expanded to include comparing the record of
the referral on the charge sheet with the convening orders to
ensure that they are consistent. The other matters in paragraphs
61 a and b of MCM, 1969 (Rev.), are omitted here as unnecessary.
The second paragraph in the discussion is based on paragraph
58 c of MCM, 1969 (Rev.) and serves as a reminder of the
ANALYSIS
App. 21, R.C.M. 902
A r t i c l e 3 5 r e q u i r e m e n t s . S e e U n i t e d S t a t e s v . P e r g a n d e , 4 9
C.M.R. 28 (A.C.M.R. 1974). The failure to object is normally a
waiver of the statutory right. United States v. Lumbus, 48 C.M.R.
613 (A.C.M.R. 1974). Because of the importance of the right,
however, the military judge should secure an affirmative waiver.
See United States v. Perna, 1 U.S.C.M.A. 438, 4 C.M.R. 30
(1952); United States v. Pergande, supra.
(b) Announcement of parties. This subsection is based on paragraph
61 c of MCM, 1969 (Rev.). Requiring an announcement is
intended to guard against inadvertently proceeding in the absence
of necessary personnel and to ensure that the record reflects the
presence of required personnel. Failure to make the announcement
is not error if it otherwise appears that no essential personnel
were absent.
(c) Swearing reporter and interpreter. This subsection and its
discussion are taken directly from paragraph 61 d of MCM, 1969
(Rev.).
(d) Counsel. This subsection, except for subsection (4)(A) and
(D), is based on paragraphs 61 e and f of MCM, 1969 (Rev.). The
qualifications of counsel and matters which disqualify counsel are
treated at R.C.M. 502(d) and are not repeated here. The subsection
makes clear that at trial the military judge is responsible for
determining whether counsel is disqualified, Soriano v. Hosken, 9
M.J. 221 (C.M.A. 1980), and for seeing that appropriate action is
taken. Of course, if a detailed counsel is disqualified the responsibility
will fall upon the convening authority to rectify the problem.
The discussion points out that defects in the qualification of
counsel are not jurisdictional. Wright v. United States, 2 M.J. 9
(C.M.A. 1976). Subsection (4)(A) has been added to conform to
the requirements of United States v. Donohew, 18 U.S.C.M.A.
149, 39 C.M.R. 149 (1969). Cf. Fed. R. Crim. P. 5(c). Subsection
(4)(D) is based on Fed. R. Crim. P. 44(c) and United States v.
Breese, 11 M.J. 17 (C.M.A. 1981). See also United States v.
Davis, 3 M.J. 430 (C.M.A. 1977); United States v. Blakey, 1 M.J.
247 (C.M.A. 1976); United States v. Evans, 1 M.J. 206 (C.M.A.
1975).
(e) Presence of members. This subsection is new. Its purpose is
to eliminate unnecessary attendance by members. Accord Article
39(a).
Rule 902 Disqualification of military judge
Introduction. This rule is based on 28 U.S.C. § 455, which is
itself based on Canon III of the ABA Code of Judicial Conduct,
and on paragraph 62 of MCM, 1969 (Rev.).
T h e p r o c e d u r e s p r e s c r i b e d b y 2 8 U . S . C . § 1 4 4 w e r e n o t
adopted. That statute provides that whenever a party “files a
timely and sufficient affidavit that the judge before whom the
matter is pending has a personal bias or prejudice either against
him or in favor of any adverse party, such judge shall proceed no
further therein.” This section does not establish a different test
from 28 U.S.C. § 455 for disqualification for prejudice or bias.
Instead, 28 U.S.C. § 144 provides a procedure mechanism by
which the disqualification determination may be made. United
States v. Sibla, 624 F.2d 864 (9th Cir. 1980); see also Parrish v.
Board of Commissioners of Alabama State Bar, 524 F.2d 98 (5th
Cir. 1975) (en banc), cert. denied, 425 U.S. 944 (1976).
This procedure is not practicable for courts-martial because of
the different structure of the military judiciary and the limited
number of military judges.
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