Chapter 12.
Members of General and Special Courts-Martial

78. IN GENERAL. Members of courts-martial perform the functions of judge and jury. They hear, discuss, and weight the evidence, determine the guilt or innocence of the accused and, if the accused is found guilty, adjudge a proper sentence. They are sworn to "administer justice, without partiality, favor or affection." (AW 19). The liberty, or even life, of an accused may depend upon the correctness of their decisions. Service as a member of a court-martial is, therefore, a most important duty which must be conscientiously performed. All member, irrespective of rank, have an equal vote and an equal responsibility in deciding the question of guilt or innocence and in determining the sentence. Neither the president nor the law member has any greater power than any other member in this respect. They do, however, have some special functions to perform which are discussed in the paragraphs below.

79. PRESIDENT.

    1. Definition. The ranking member present at the trial is the president (par. 39, MCM) and thus no member is ever specially detailed as such. If the senior officer named in the detail for the court is not present at any session, or if the ranking member is excused during trial, the next in rank automatically becomes the president. If the law member of a general court-martial is or becomes the ranking member present, he exercises the functions of both president and law member.

    2. Assembling the court. The president, after being consulted by the trial judge advocate, sets the date, hour, and place of the trial, prescribes the uniform to be worn, and directs the trial judge advocate to notify the other members (including counsel) of these matters. If counsel for either side is unprepared to proceed to trial at the time set, or if other good reason for delaying the trial exists, the president may postpone the assembling of the court (par. 52b, MCM) thereby in effect granting a continuance. This power should not be exercised unless good cause is shown.

    3. Excusing members. The president does not have the power to excuse members from attendance at the trial. Like the performance of any other military duty, a detail to serve on a court-martial cannot be revoked by authority inferior to that directing it. Requests to be excused from sitting on the court must be directed to the appointing

authority (par. 38a, MCM), not to the president of the court. For a proper reason (e.g., preparation of another case), the president may in advance of trial excuse from attendance during a trial such of the personnel of the prosecution (par. 41a, MCM), and with the consent of the accused, such of the personnel of the defense (par. 43a, MCM), as will not be required.
4. Duties during trial in general. While the trial is in progress, the president speaks for the court, maintaining order, directing the conduct of the proceedings, excusing witnesses, declaring recesses and adjournments, preventing any undue delay, and controlling and announcing the results of the court's deliberation inclosed session. The president must be thoroughly familiar with court-martial procedure. Appendix I, this manual, and paragraphs 38, 39, and 49 though 81, MCM, should be carefully studied. (See also ch. 13, this manual for a discussion of some of the common matters arising in a trial.)

5. Rulings on interlocutory questions. In all special court-martial cases and in general court-martial cases if the law member is not present, the president of the court must rule on all interlocutory questions, except challenges. An "interlocutory question" is one which does not finally dispose of the case, an intermediate question arising during the course of the trial. A motion for continuance, a plea to the jurisdiction of the court, the admissibility of a stipulation, whether certain evidence should be received, the propriety of statements or arguments by the trial judge advocate or defense counsel are examples of interlocutory questions. In short, any question except the decision on findings and on the sentence is an interlocutory question. Although a challenge of a member is an interlocutory question, it is disposed of differently. (See AW 31; pars. 57 and 58, MCM, and the discussion in par. 84, infra.) On all other interlocutory questions the president must make a ruling. This ruling is always to be made "subject to the objection of any member." Thus, if the defense should move for a continuance, the president would dispose of the question by ruling: "Subject to the objection of any member the motion is granted (or denied)." If no member objects, the ruling will stand. If, however, any member does object, the court will close to vote on the question (AW 31). The vote will be oral, beginning with the junior member and continuing in inverse order of rank. The president will ask each member how he votes and tally the results. A majority vote decides the question, and in case of a tie vote, the objection, motion, etc., is overruled (par. 51f, MCM). The members vote on the principal question, and not upon the ruling. If, for example, the defense made a motion for a finding of not guilty; the president ruled, subject to objection by any member, to grant the motion; a member objected; and the court was close; the question to be put to a vote is whether the motion should be granted or denied, not whether the ruling should be sustained. Therefore, if there were a tie vote, the motion would be overruled. After the vote is taken the court will reopen

and the president will announce the decision, i.e., "Motion denied (or granted)," but not the numerical vote of the court.
6. Concluding incidents of trial. The duties of the president during the deliberation of the court upon its findings and sentence are discussed in chapters 15 and 16, infra. In announcing the findings and sentence he must be sure to state the findings and sentence voted by the court accurately, both as to form and substance. The president will conclude the trial by stating either that the court will adjourn to meet at his call, or that it will proceed to other business.

7. Authentication of record. The president, together with the trial judge advocate, authenticates the record of trial. (See par. 128e, infra.)
80. LAW MEMBER.

    1. Definition. A law member must be detailed for every general court-martial (AW 8. He is the member of the court who is specially skilled in questions of military law and procedure and is the legal adviser of the court. It is his function not only to make rulings on questions raised throughout the trial, but to guide the court in matters of procedure and to clarify points of law which may arise in discussion in closed session. He has the powers of other members and votes equally with them on all questions on which a vote is required.

    2. Presence at trial. The appointing authority may expressly direct that he be present at all trials or at a particular trial. If there is such a directive, the trial cannot proceed if for any reason the law member is absent (38c, MCM.) If there is no such directive,the absence of the law member does not affect the validity of the proceedings. Thus, if the law member is challenged for cause and the challenge is sustained, the trial may proceed after the law member is excused. In such case, the president will rule on interlocutory questions (See par. 79c, supra.) Every effort, however, should be made to have the law member participate in all trials unless he is excused on a challenge for cause. He cannot be challenged peremptorily.

    3. Rulings on interlocutory questions. When present, he, instead of the president, must rule on all interlocutory questions except challenges. (See par. 79e, supra, as to what constitutes an interlocutory question.) His rulings differ from the president's in one important respect, namely, his ruling is final on objections to the admissibility of evidence. When the president rules ( as he does in a special court-martial always, and in a general court-martial in the absence of the law member) all his rulings are subject to objection of any member. When the law member rules, all his rulings are subject to the objection of any member except rulings concerning the admissibility of evidence. On such questions his ruling is binding on all members of the court and cannot be overturned by them. The reason is clear. Objections to the admissibility of evidence generally concern technical matters of law as to which the law member has more knowledge than any other member of the court. Thus, if an objection

were made to the admission in evidence of an extract copy of a morning report on the ground that it was not duly authenticated or to a question asked a witness on the ground that it called for hearsay, the law member would rule "The objection is overruled (sustained)." AW 31 lists certain matters, such as questions of recalling witnesses, the sanity of the accused, or competency of a witness, which are not to be considered objection to the admissibility of evidence. As to these and all other questions not involving evidence, the law members rules in the same manner as the president, i.e., "subject to objection of any member." (See par. 79e, supra, as to procedure if a member objects.) If a member objects in such a case and the court is closed to vote on the question, the law member has the same right as any other member to vote.
4. Other duties during trial. In addition to his functions as a judge in ruling on interlocutory questions and as a member in voting on the findings and sentence, he is the general legal adviser of the court. Though he should not interfere with the orderly procedure of the courts, he may call attention to and correct errors that occur even though no objection is made. If, for example, the prosecution offers incompetent or otherwise prejudicial testimony the law member may exclude it despite a failure of the defense to object. He should likewise curtail an unwarranted cross-examination of the accused or any other member of the court, especially since counsel are more reluctant to object to improper questioning by members of the court than by opposing counsel. If requested by the president,he should explain to accused at the proper time the effect of a plea of guilty and his rights as a witness (See app. 1, p. 152, infra.)

5. Other duties in closed session. He must be prepared to answer all questions of law arising in closed session. This may include an explanation of the elements necessary to establish the offense charged, what lesser offenses, if any, are included in the offenses charged, and the possible findings the court may make by way of exceptions and substitutions. He should be prepared to advise the court as to the maximum punishment for each offense with which accused is charged. It may be desirable for him to write out in proper form the findings and sentence upon which the court has determined so that they will be correctly and accurately announced by the president.
81. JUNIOR MEMBER. The junior member has the same right and duty to participate in discussions in closed session and to vote as has any other member. Since he has an equal responsibility in determining the fate of the accused, he should decide in accordance with his own judgment and not be influenced by the higher rank of other members. To avoid such influence, AW 31 provides that, whenever the vote is oral (as it is on interlocutory questions except challenges), the junior member shall vote first. When the vote is by secret written ballot (as it is on challenges, findings and sentences) the junior member distributes the ballots, collects

them, opens and counts them before the president who checks and tabulates the votes. The junior member customarily acts as messenger for the court. WHen the court is prepared to open after having been in closed session, he summons the prosecution and the defense and other persons who have been excluded.

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