Chapter IX · Trial Procedures Through Findings
R.C.M. 902. Disqualification of military judge
2024 Manual for Courts-Martial, United States
See all changes(a) In general. Except as provided in subsection (e) of this rule, a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.
(b) Specific grounds. A military judge shall also disqualify himself or herself in the following circumstances:
(1) Where the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding.
(2) Where the military judge has acted as counsel, preliminary hearing officer, investigating officer, legal officer, staff judge advocate, or convening authority as to any offense charged or in the same case generally.
(3) Where the military judge has been or will be a witness in the same case; is the accuser; has forwarded charges in the case with a personal recommendation as to disposition; has referred charges in the case; or, except in the performance of duties as military judge in a previous trial of the same or a related case, has expressed an opinion concerning the guilt or innocence of the accused.
(4) Where the military judge is not eligible to act because the military judge is not qualified under R.C.M. 502(c) or not detailed under R.C.M. 503(b).
(5) Where the military judge, the military judge’s spouse, or a person within the third degree of relationship to either of them or a spouse of such person:
(A) Is a party to the proceeding;
(B) Is known by the military judge to have an interest, financial or otherwise, that could be substantially affected by the outcome of the proceeding; or
(C) Is to the military judge’s knowledge likely to be a material witness in the proceeding.
Discussion
A military judge should inform himself or herself about his or her financial interests, and make a reasonable effort to inform himself or herself about the financial interests of his or her spouse and minor children living in his or her household.
(c) Definitions. For the purposes of this rule the following words or phrases shall have the meaning indicated—
(1) “Proceeding” includes pretrial (to include pre-referral), trial, post-trial, appellate review, or other stages of litigation.
(2) The “degree of relationship” is calculated according to the civil law system .
Discussion
Relatives within the third degree of relationship are children, grandchildren, great grandchildren, parents, grandparents, great grandparents, brothers, sisters, uncles, aunts, nephews, and nieces.
(d) Procedure.
(1) The military judge shall, upon motion of any party or sua sponte , decide whether the military judge is disqualified.
Discussion
There is no peremptory challenge against a military judge. A military judge should carefully consider whether any of the grounds for disqualification in this rule exist in each case. The military judge should broadly construe grounds for challenge but should not step down from a case unnecessarily. Possible grounds for disqualification should be raised at the earliest reasonable opportunity. They may be raised at any time, and an earlier adverse ruling does not bar later consideration of the same issue, as, for example, when additional evidence is discovered.
(2) Each party shall be permitted to question the military judge and to present evidence regarding a possible ground for disqualification before the military judge decides the matter.
Discussion
Nothing in this rule prohibits the military judge from reasonably limiting the presentation of evidence, the scope of questioning, and argument on the subject so as to ensure that only matters material to the central issue of the military judge’s possible disqualification are considered, thereby, preventing the proceedings from becoming a forum for unfounded opinion, speculation or innuendo.
(3) Except as provided under subsection (e) of this rule, if the military judge rules that the military judge is disqualified, the military judge shall recuse himself or herself.
(e) Waiver. No military judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b) of this rule. Where the ground for disqualification arises only under subsection (a) of this rule, waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.