Chapter IX · Trial Procedures Through Findings
R.C.M. 913. Presentation of the case on the merits
2024 Manual for Courts-Martial, United States
See all changes(a) Preliminary instructions. The military judge may give such preliminary instructions as may be appropriate. If mixed pleas have been entered, the military judge should ordinarily defer informing the members of the offenses to which the accused pleaded guilty until after the findings on the remaining contested offenses have been entered.
Discussion
Preliminary instructions may include a description of the duties of members, procedures to be followed in the court-martial, and other appropriate matters. Exceptions to the rule requiring the military judge to defer informing the members of an accused’s prior pleas of guilty include cases in which the accused has specifically requested, on the record, that the military judge instruct the members of the prior pleas of guilty and cases in which a plea of guilty was to a lesser included offense within the contested offense charged in the specification. See R.C.M. 910(g), Discussion and R.C.M. 920(e), Discussion, paragraph 3.
(b) Opening statements. Each party may make one opening statement to the court-martial before presentation of evidence has begun. The defense may elect to make its statement after the prosecution has rested, before the presentation of evidence for the defense. The military judge may, as a matter of discretion, permit the parties to address the court-martial at other times.
Discussion
Counsel should confine their remarks to evidence they expect to be offered which they believe in good faith will be available and admissible and a brief statement of the issues in the case.
(c) Presentation of evidence. Each party shall have full opportunity to present evidence.
(1) Order of presentation. Ordinarily the following sequence shall be followed:
(A) Presentation of evidence for the prosecution;
(B) Presentation of evidence for the defense;
(C) Presentation of prosecution evidence in rebuttal;
(D) Presentation of defense evidence in surrebuttal;
(E) Additional rebuttal evidence in the discretion of the military judge; and
(F) Presentation of evidence requested by the military judge or members.
Discussion
See R.C.M. 801(a) and Mil. R. Evid. 611 concerning control by the military judge over the order of proceedings.
(2) Taking testimony. The testimony of witnesses shall be taken orally in open session, unless otherwise provided in this Manual.
Discussion
Each witness must testify under oath. See R.C.M. 807(b)(1)(B), Mil. R. Evid. 603. After a witness is sworn, the witness should be identified for the record (full name, rank, and unit, if military, or full name and address, if civilian). The party calling the witness conducts direct examination of the witness, followed by cross-examination of the witness by the opposing party. Redirect and re-cross-examination are conducted as necessary, followed by any questioning by the military judge and members. See Mil. R. Evid. 611, 614. All documentary and real evidence (except marks or wounds on a person’s body) should be marked for identification when first referred to in the proceedings and should be included in the record of trial whether admitted in evidence or not. See R.C.M. 1112. “Real evidence” include physical objects, such as clothing, weapons, and marks or wounds on a person’s body. If it is impracticable to attach an item of real evidence to the record, the item should be clearly and accurately described by testimony, photographs, or other means so that it may be considered on review. Similarly, when documentary evidence is used, if the document cannot be attached to the record (as in the case of an original official record or a large map), a legible copy or accurate extract should be included in the record. When a witness points to or otherwise refers to certain parts of a map, photograph, diagram, chart, or other exhibit, the place to which the witness pointed or referred should be clearly identified for the record, either by marking the exhibit or by an accurate description of the witness’ actions with regard to the exhibit.
(3) Views and inspections. The military judge may, as a matter of discretion, permit the court-martial to view or inspect premises or a place or an article or object. Such a view or inspection shall take place only in the presence of all parties, the members (if any), and the military judge. A person familiar with the scene may be designated by the military judge to escort the court-martial. Such person shall perform the duties of escort under oath. The escort shall not testify, but may point out particular features prescribed by the military judge. Any statement made at the view or inspection by the escort, a party, the military judge, or any member shall be made part of the record.
Discussion
The fact that a view or inspection has been made does not necessarily preclude the introduction in evidence of photographs, diagrams, maps, or sketches of the place or item viewed, if these are otherwise admissible.
(4) Evidence subject to exclusion. When offered evidence would be subject to exclusion upon objection, the military judge may, as a matter of discretion, bring the matter to the attention of the parties and may, in the interest of justice, exclude the evidence without an objection by a party.
Discussion
The military judge should not exclude evidence which is not objected to by a party except in extraordinary circumstances. Counsel should be permitted to try the case and present the evidence without unnecessary interference by the military judge. See also Mil. R. Evid. 103.
(5) Reopening case. The military judge may, as a matter of discretion, permit a party to reopen its case after it has rested.