Chapter VIII · Trial Procedure Generally
R.C.M. 801. Military judge’s responsibilities; other matters
2024 Manual for Courts-Martial, United States
Recent revisions Summary of changes Cited by (11)(a) Responsibilities of military judge. The military judge is the presiding officer in a court-martial. The military judge shall:
Discussion
The military judge is responsible for ensuring that court-martial proceedings are conducted in a fair and orderly manner, without unnecessary delay or waste of time or resources.
(1) Determine the time and uniform for each session of a court-martial;
Discussion
The military judge should consult with counsel concerning the scheduling of sessions and the uniform to be worn. The military judge recesses or adjourns the court-martial as appropriate. Subject to R.C.M. 504(d)(1), the military judge may also determine the place of trial. See also R.C.M. 906(b)(11).
(2) Ensure that the dignity and decorum of the proceedings are maintained;
(3) Subject to the UCMJ and this Manual, exercise reasonable control over the proceedings to promote the purposes of these rules and this Manual;
Discussion
See R.C.M. 102. The military judge may, within the framework established by the code and this Manual, prescribe the manner and order in which the proceedings may take place. Thus, the military judge may determine: when, and in what order, motions will be litigated ( see R.C.M. 905); the manner in which voir dire will be conducted and challenges made ( see R.C.M. 902(d) and 912); the order in which witnesses may testify ( see R.C.M. 913; Mil. R. Evid. 611); the order in which the parties may argue on a motion or objection; and the time limits for argument ( see R.C.M. 905; 919; 1001(h)). The military judge should prevent unnecessary waste of time and promote the ascertainment of truth, but must avoid undue interference with the parties’ presentations or the appearance of partiality. The parties are entitled to a reasonable opportunity to properly present and support their contentions on any relevant matter.
(4) Rule on all interlocutory questions and all questions of law raised during the court-martial as provided under subsection (e);
(5) Instruct the members on questions of law and procedure which may arise; and
Discussion
The military judge instructs the members concerning findings ( see R.C.M. 920) and, when applicable, sentence ( see R.C.M. 1005), and when otherwise appropriate. For example, preliminary instructions to the members concerning their duties and the duties of other trial participants and other matters are normally appropriate. See R.C.M. 913. Other instructions (for example, instructions on the limited purpose for which evidence has been introduced, see Mil. R. Evid. 105) may be given whenever the need arises.
(6) At the military judge’s discretion, in the case of a victim of an offense under the UCMJ who is under 18 years of age and not a member of the armed forces, or who is incompetent, incapacitated, or deceased, designate the legal guardian(s) of the victim or the representative(s) of the victim’s estate, family members, or any other person deemed as suitable by the military judge to assume the victim’s rights under the UCMJ.
(A) The military judge is not required to hold a hearing before determining whether a designation is required or before making such a designation under this rule.
(B) If the military judge determines a hearing under Article 39(a), UCMJ, is necessary, the victim shall be notified of the hearing and afforded the right to be present at the hearing.
(C) The individual designated shall not be the accused.
(D) At any time after appointment, a designee shall be excused upon request by the designee or a finding of good cause by the military judge.
(E) If the individual appointed to assume the victim’s rights is excused, the military may designate a successor consistent with this rule.
Discussion
The term “victim of an offense under the UCMJ” has the same meaning as the term “victim of an offense under this chapter” in Article 6b.
(b) Rules of court; contempt. The military judge may:
(c) Obtaining evidence. The court-martial may act to obtain evidence in addition to that presented by the parties. The right of the members to have additional evidence obtained is subject to an interlocutory ruling by the military judge.
Discussion
The members may request and the military judge may require that a witness be recalled, or that a new witness be summoned, or other evidence produced. The members or military judge may direct trial counsel to make an inquiry along certain lines to discover and produce additional evidence. See also Mil. R. Evid. 614. In taking such action, the court-martial must not depart from an impartial role.
(d) Uncharged offenses. If during the trial there is evidence that the accused may be guilty of an untried offense not alleged in any specification before the court-martial, the court-martial shall proceed with the trial of the offense charged.
Discussion
A report of the matter may be made to the referral authority after trial.. If charges are preferred for an offense indicated by the evidence referred to in this subsection, no member of the court-martial who participated in the first trial should sit in any later trial. Such a member would ordinarily be subject to a challenge for cause. See R.C.M. 912. See also Mil. R. Evid. 105 concerning instructing the members on evidence of uncharged misconduct.
(e) Interlocutory questions and questions of law.
(1) Rulings by the military judge.
(A) Finality of rulings. Any ruling by the military judge upon a question of law, including a motion for a finding of not guilty, or upon any interlocutory question is final.
(B) Changing a ruling. The military judge may change a ruling made by that or another military judge in the case except a previously granted motion for a finding of not guilty, at any time during the trial.
(C) Article 39(a) sessions. When required by this Manual or otherwise deemed appropriate by the military judge, interlocutory questions or questions of law shall be presented and decided at sessions held without members under R.C.M. 803.
(2) [Reserved]
(3) [Reserved]
(4) Standard of proof. Questions of fact in an interlocutory question shall be determined by a preponderance of the evidence, unless otherwise stated in this Manual. In the absence of a rule in this Manual assigning the burden of persuasion, the party making the motion or raising the objection shall bear the burden of persuasion.
Discussion
A ruling on an interlocutory question should be preceded by any necessary inquiry into the pertinent facts and law. For example, the party making the objection, motion, or request may be required to furnish evidence or legal authority in support of the contention. An interlocutory issue may have a different standard of proof. See, for example, Mil. R. Evid. 314(e)(5), which requires consent for a search to be proved by clear and convincing evidence. Most of the common motions are discussed in specific rules in this Manual, and the burden of persuasion is assigned therein. The prosecution usually bears the burden of persuasion ( see Mil. R. Evid. 304(f)(6); 311(d)(5); see also R.C.M. 905 through 907) once an issue has been raised. What “raises” an issue may vary with the issue. Some issues may be raised by a timely motion or objection. See , e.g. , Mil. R. Evid. 304(f). Others may not be raised until the defense has made an offer of proof or presented evidence in support of its position. See , e.g. , Mil. R. Evid. 311(d)(4)(B). The rules in this Manual and relevant decisions should be consulted when a question arises as to whether an issue is raised, as well as which side has the burden of persuasion. The military judge may require a party to clarify a motion or objection or to make an offer of proof, regardless of the burden of persuasion, when it appears that the motion or objection is vague, inapposite, irrelevant, or spurious.
(5) Scope. Subsection (e) of this rule applies to the disposition of questions of law and interlocutory questions arising during trial except the question whether a challenge should be sustained.
Discussion
Questions of law and interlocutory questions include all issues which arise during trial other than the findings (that is, guilty or not guilty), sentence, and administrative matters such as declaring recesses and adjournments. A question may be both interlocutory and a question of law. Challenges are specifically covered in R.C.M. 902 and 912. Questions of the applicability of a rule of law to an undisputed set of facts are normally questions of law. Similarly, the legality of an act is normally a question of law. For example, the legality of an order when disobedience of an order is charged, the legality of restraint when there is a prosecution for breach of arrest, or the sufficiency of warnings before interrogation are normally questions of law. It is possible, however, for such questions to be decided solely upon some factual issue, in which case they would be questions of fact. For example, the question of what warnings, if any, were given by an interrogator to a suspect would be a factual question. A question is interlocutory unless the ruling on it would finally decide whether the accused is guilty. Questions which may determine the ultimate issue of guilt are not interlocutory. An issue may arise as both an interlocutory question and a question which may determine the ultimate issue of guilt. An issue is not purely interlocutory if an accused raises a defense or objection and the disputed facts involved determine the ultimate question of guilt. For example, if during a trial for desertion the accused moves to dismiss for lack of jurisdiction and presents some evidence that the accused is not a member of an armed force, the accused’s status as a military person may determine the ultimate question of guilt because status is an element of the offense. If the motion is denied, the disputed facts must be resolved by each member in deliberation upon the findings. (The accused’s status as a Servicemember would have to be proved by a preponderance of the evidence to uphold jurisdiction, see R.C.M. 907, but beyond a reasonable doubt to permit a finding of guilty.) If, on the other hand, the accused was charged with larceny and presented the same evidence as to military status, the evidence would bear only upon amenability to trial and the issue would be disposed of solely as an interlocutory question. Interlocutory questions may be questions of fact or questions of law.
(f) Rulings on record. All sessions involving rulings or instructions made or given by the military judge shall be made a part of the record. All rulings and instructions shall be made or given in open session in the presence of the parties and the members, except as otherwise may be determined in the discretion of the military judge.
(g) Effect of failure to raise defenses or objections. Failure by a party to raise defenses or objections or to make requests or motions which must be made at the time set by this Manual or by the military judge under authority of this Manual, or prior to any extension thereof made by the military judge, shall constitute forfeiture unless the applicable rule provides that failure to raise the defense or objection constitutes waiver.
Cross-referencesCited by 11Cites 32
Cited by
Provisions elsewhere in the Manual whose text cites R.C.M. 801. Each link opens the citing provision.
Rules for Courts-Martial
Discussion under R.C.M. 502(c)(2) — Qualifications and duties of personnel of courts-martial
See R.C.M. 801 for description of some of the general duties of the military judge and military magistrate. Military judges…
See also R.C.M. 801(c) concerning the opportunity of the court-martial to obtain witnesses and evidence.
…may arise as both an interlocutory question and a question that bears on the ultimate issue of guilt. See R.C.M. 801(e)(5). In such circumstances, this rule authorizes the admission of testimony by remote means or similar…
…records. Notice may be given to the victim or to a victim’s representative such as a representative under R.C.M. 801(a)(6) or legal counsel. This provision is drawn from Fed. R. Crim. P. 17(c)(3) with differences to account for…
…whether such determination binds the United States in another proceeding are interlocutory questions. See R.C.M. 801(e). It does not matter whether the earlier proceeding ended in an acquittal, conviction, or otherwise, as long…
…is granted by the military judge, the military judge will decide which accused will be tried first. See R.C.M. 801(a). In the case of joint charges, the military judge will direct an appropriate amendment of the charges and…
See R.C.M. 801(a) and Mil. R. Evid. 611 concerning control by the military judge over the order of proceedings.
Ordinarily, the lawfulness of an order is decided by the military judge. See R.C.M. 801(e). An exception might exist when the sole issue is whether the person who gave the order in fact occupied a…
The military judge may exercise reasonable control over argument. See R.C.M. 801(a)(3). Argument may include comment about the testimony, conduct, motives, interests, and biases of witnesses to…
…there are numerous victims, the military judge may reasonably limit the form of the statements provided. See R.C.M. 801(a)(3). The method by which the opportunity to be reasonably heard was provided to any crime victim present at the…
Requests for and objections to instructions should be resolved at an Article 39(a) session. See R.C.M. 801(e)(1)(C), 803. The military judge is not required to give the specific instruction requested by counsel if the matter is…
R.C.M. 801 cites
Provisions named in the text of R.C.M. 801. Where the cited provision is on this site, the link opens it.
- R.C.M. 102
- R.C.M. 108
- R.C.M. 504(d)(1)
- R.C.M. 803
- R.C.M. 804
- R.C.M. 806
- R.C.M. 808
- R.C.M. 809
- R.C.M. 902
- R.C.M. 902(d)
- R.C.M. 905
- R.C.M. 906
- R.C.M. 906(b)(11)
- R.C.M. 907
- R.C.M. 912
- R.C.M. 913
- R.C.M. 920
- R.C.M. 1005
- R.C.M. 1112
- Mil. R. Evid. 103
- Mil. R. Evid. 105
- Mil. R. Evid. 304
- Mil. R. Evid. 304(f)
- Mil. R. Evid. 304(f)(6)
- Mil. R. Evid. 311
- Mil. R. Evid. 311(d)(4)(B)
- Mil. R. Evid. 314(e)(5)
- Mil. R. Evid. 321
- Mil. R. Evid. 611
- Mil. R. Evid. 614
- Article 6b
- Article 39(a)