Chapter 9.
Summary Court Officers

60. NATURE AND FUNCTIONS OF SUMMARY COURT. The function of a summary court is to dispense justice promptly for relatively minor offenses under a simple form of procedure. A summary court-martial consists of a single officer, called the "summary court officer," who performs the functions not only of a court, but of the trial judge advocate and defense counsel as well. The summary court must investigate both sides of the matter thoroughly and impartially and see that the interests of both the Government and the accused are fully conserved (par. 82, MCM). A summary court proceeding is a true "trial," its procedure following that prescribed for general courts-martial as far as practicable. Its very name indicates, however, that its proceedings will be taken promptly and speedily completed.

61. SELECTION OF SUMMARY COURT OFFICERS. Since far more soldiers are tried by summary courts than by all other types of military tribunals combined, the fairness and efficiency of the entire court-martial system may be judged by the manner in which such proceedings are conducted. It is therefore, of utmost importance that each summary court officer not only possess qualities of leadership, fairness and dignity, butu that he be so well grounded in rules of summary court procedure as to enable him to maintain a judicial atmosphere in his proceedings at all times. The appointment of inexperienced junior officers will little or no background in military law or the handling of men defeats the very purpose of a summary court trial. The duty of acting as summary court officer is not one, therefore, that can be rotated indiscriminately among officer personnel of a command. As the summary court must act impartially, any close personal knowledge of the soldier or the offense is a handicap. It is, therefore, inadvisable to refer to a summary court officer charges against personnel of his own immediate command with whom he has had close personal contact. Although there is no legal prohibition against the accuser or prosecutor serving as summary court officer, a fairer trial will result of such cases are referred for trial to someone having no knowledge of the persons or offenses involved. Of course, in small detachments, with a single officer or with a very limited number of officers present, if

the maintenance of discipline requires immediate trial and punishment, the charges may have to be tried by an officer familiar with the case, even the accuser himself. That the law provides for. See pars. 53 and 54a, supra.) Where possible, however, such a result should be avoided.
62. DUTIES OF SUMMARY COURT OFFICER BEFORE TRIAL.

    1. The first knowledge that a summary court officer ordinarily will have of a case will be upon his actual receipt of the charges referred to him for trial. Since usually neither a letter of transmittal nor a report of investigation will accompany the charges, his only information of the case may be the contents of the charge sheet itself. This he will carefully examine, both to determine the offenses to be tried and the evidence, witness and documentary, and initial slight errors or obvious mistakes in the charges, he has no authority to make any substantial change therein. As soon as the charges and accompanying papers, if any, have been examined and a knowledge obtained as to the proof necessary to sustain the charges, immediate arrangements should be made for trial. That is of especial importance if the accused is in arrest or confinement. It should be possible in the normal case to arrange for the trial to take place within 24 hours after receipt of the charges. The summary court officer then notifies all witnesses and the accused of the time and place set for trial. The organization commanders of military witnesses, including the accused, should be requested (informally, by telephone or otherwise) to have them present. If the accused is in confinement, arrangements for his attendance may be made with the appropriate prison officer. Civilian witnesses may be notified, by letter or telephone, of the time of the trial. The summary court officer has the same power as the trial judge advocate of a general or special court to compel the attendance of civilian witnesses by subpoena and to take depositions in proper cases. (See par. 68c and e, infra.)

    2. The case of Private Merton T. Johnson (app. 4 infra) may be considered to illustrate the procedure followed by a summary court officer. On 13 October 1943, Major Charles B. Foster, 181st Infantry, Summary Court, received the original and two copies of a charge sheet, together with a certificate of previous convictions extracted from the service record of accused showing a prior conviction. He then studied the charge sheet from which he learned that the accused had been in confinement since 11 October 1943, and that he was charged with two offenses: being drunk in camp and breach of restriction, both in violation of the 96th Article of War. He noted the names of three witnesses listed on page 1 of the charge sheet: Captain Arthur M. Stern, Company C, 181st Infantry, Corporal Zachary T. Kellogg, Company K, 181st Infantry, and Private Thomas D. Graves, 26th Military Police Company. He first called Captain Stern, then the commanding officers of the two enlisted witnesses

and arranged for them to be present in his office at 0600 the next morning. He next called the prison officer at the post guardhouse and arranged for the presence of accused at the same time.
63. CONDUCT OF TRIAL.

    1. Explanation of accused's rights. At the appointed hour, when all witnesses and the accused have arrived, the court will proceed with the trial. Witnesses should be excluded from the proceedings of the court until called to testify. The accused should be called in and advised of the following matters: the nature of the proceedings; who appointed the court; the name of the accuser; the names of the witnesses to be called so far as is known; the right of accused to cross-examine them or have the court ask any questions desired; the right of accused to call any witnesses or produce any evidence in his own behalf, with assurance that the court will assist him in every way possible to do so; and his right to testify, to remain silent, or to make an unsworn statement at the proper time. If accused desires to produce additional witnesses or other evidence, the court should recess briefly at this point to arrange for having the witnesses summoned or the evidence produced.

    2. Arraignment and pleas. After making sure that accused understands his rights and is as much at ease as possible under the circumstances, the summary court should read or show the charges and specifications to him. He should be asked if he understands the nature of the charges. If he indicates that he does not, additional explanation should be made. He should then be asked how he pleads to each specification of each charge and to each charge. If he pleads guilty to any specification or charge, the meaning and effect of his plea should be explained to him, including the maximum sentence the court could impose if the plea is allowed to stand. (For form of explanation of effect of plea of guilty, see app. 1, p. 149 infra.) The court should change the plea of "guilty" to "not guilty" if the accused requests it or if there is any doubt as to his understanding and desire to plead guilty, or if at any time during the trial he makes a statement, sworn or unsworn, inconsistent with the plea. If the guilty plea is changed, the court will proceed in the same way as if a plea of "not guilty" had been originally entered. If a plea of guilty to all specifications and charges is allowed to stand, the court may proceed at once to find the accused guilty and to impose an appropriate sentence. Despite the plea of guilty, however, the court, if it so desires, may summon witnesses to clear up any doubtful matters or to testify to any mitigating or extenuating circumstances in connection with the commission of the offense. If after hearing this evidence the court should believe the plea of guilty to have been improvidently entered it may allow a withdrawal of the guilty plea.

    3. Conduct of trial proper. If the accused enters a "not guilty" plea to any offense charged, witnesses must be called or evidence produced to

establish every element of every offense to which he has so pleaded. Witnesses for the prosecution will first be called. They will be sworn and interrogated by the prosecution as to all matters relevant to the offense charged, after which the accused will be extended the right to cross-examine them. The accused may question them himself, or suggest questions to be asked by the court, or decline to exercise his right. The court will carefully follow the testimony but will not attempt to record it. After all prosecution evidence has been offered, evidence for the defense, including any testimony or statement by the accused will be received. The rights of the accused as a witness should be fully explained to him. (For a form of such explanation, see app. 1, pp. 152-153 infra.) The accused may testify or make an unsworn statement at any stage of the presentation of his defense. if the accused elects to make an unsworn statement, the court may not cross-examine or question him on the statement (par. 76, MCM).
4. Findings and sentence. At the conclusion of all evidence on both sides, the court, after considering the evidence, should arrive at findings of guilty or not guilty as to each offense charged. A summary court, like members of a general or special court, must be satisfied beyond a reasonable doubt before it can find an accused guilty. (See par. 104, infra.) If the accused is found not guilty of all offenses charges, the court will advise the accused that he has been acquitted of all charges and specifications. If, however, the court has convicted the accused of any offense charged, or of an offense included in any offense charged, it will not announce any of its findings at that time. It will rather determine the sentence to be imposed, taking into consideration any evidence of previous convictions and the personal data as the accused appearing on the first page of the charge sheet. The evidence should be shown or read to the accused who will be asked whether it is correct. If he claims it is not correct, the court will take action as indicated in paragraph 79b, MCM. A discussion of findings and sentences will be found in chapters 15 and 16. After deciding upon its sentence, the court should announce both its findings and sentence immediately, i.e., before the accused leaves, unless otherwise directed by the appointing authority. In the case of Private Merton T. Johnson (app. 4 infra) the court would have announced its findings and sentence as follows: "Private Johnson, the court finds you: Of all the Specifications and the Charge: Guilty, and sentences you to perform hard labor for fifteen days and to forfeit eighteen dollars of your pay."
64. DUTIES OF SUMMARY COURT OFFICER AFTER TRIAL. The duties of the summary court are not over at the conclusion of the trial. So much of the proceedings as relate to pleas, findings, and sentence or acquittal must be recorded in the appropriate place on page 4 of the charge sheet (par. 86 and app. 8, MCM). All three copies of the charge sheet will be completed. For the completed record of trial in the case of Private Johnson,

see appendix 4 infra. If any previous convictions were considered by the court, as in the Johnson case, a notation of that fact and the number considered will follow the sentence in the column headed "Sentence or acquittal and remarks" on page 4 of the charge sheet. If the accused were a noncommissioned officer and objected to trial by summary court, a notation that trial was authorized by an authority competent to bring the accused to trial before a general court-martial should be made in the same column. A statement that the meaning and effect of the accused's plea of guilty (if any) and his right to testify were explained to him is not required (see note, app. 8, MCM), but is desirable, and may be placed in the same column, e.g. "MCM, par. 82 complied with," or "Meaning and effect of plea of guilty explained to accused." The summary court will then sign the record in triplicate and will forward all three copies, and accompanying papers, without letter of transmittal to the reviewing authority, i.e., the authority who referred the case for trial or his successor (par. 86, MCM). If the summary court officer is the only officer present with the command, he will so state in signing the record and instead of forwarding the record, will hold it as transmitted to himself as reviewing authority (par. 86, MCM). The action to be taken by the reviewing authority and the disposition to be made of the record are discussed in chapter 18, infra.

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