3445. Evidence heard in open court. 3454. Finding-On charge and spec

§ 3443. Sessions. Following the English custom the statute formerly provided that all sessions of the courts-martial should be held between the hours of eight o'clock in the morning and three o'clock in the afternoon, except in particular cases. But this section has been repealed by the Act of 1901, and the court is not governed by any statutory regulation as to the hours of its session. But it is obvious that the sessions should be so arranged that the judge-advocate may have an opportunity to prepare the daily record. It is evident that the law-makers intended that the sessions of the court-martial should now be determined entirely by the court itself.

§ 3444. Continuance.-"A court-martial shall, for reasonable cause, grant a continuance to either party, for such time, and as often, as may appear to be just: Provided, that if the prisoner be in close confinement the trial shall not be delayed for a period longer than sixty days." The rules in regard to the continuance are very similar to those in general practice in other courts. The court should require a showing that the absent evidence is material and not cumula

1 Article 93.

tive. It should be satisfied also that the absence of the witness was not owing to the neglect or the procurement of the party. The accused ought not to be charged with negligence in this respect where the witness is prevented from being present by superior military authority. So where there is a material difference between the copy of the charge served upon the accused and the charge and specification upon which he is to be tried, or where a material and substantial amendment is made in the specification, either of these may be sufficient grounds for a continuance. So it is proper to continue the hearing in order to give the accused time to procure counsel. But a refusal to grant a continuance will not necessarily invalidate the proceedings; however, if the accused has been prejudiced in any manner it may constitute good grounds for disapproving the sentence or for mitigating or partially remitting the punishment.*

§ 3445. Evidence heard in open court.-On the question of the production and introduction of the evidence in open court Col. Winthrop states the rule as follows: "All testimony, whether oral or written, and whether upon the main or an interlocutory issue, is to be introduced in open court, and no testimony can be received by the court during a period of deliberation after it has been cleared. So, where a member of the court has knowledge of material facts in the case, he cannot properly communicate the same privately to the court when cleared for deliberation, or to the other members but should cause himself to be sworn as a witness on the part of the prosecution or defense. To the rule that the testimony shall be taken in open court, an exception has been recognized in a case where a material witness, commorant at the station at which the court is assembled, is unable, through sickness or other disability, to attend, and the exigencies or interests of the service do not justify waiting for his recovery. In such a case the court may temporarily adjourn to the quarters or hospital where the witness may be, and receive the testimony, taken in the usual manner.""

§ 3446. Opening statement.-The order of the trial is very similar to that in criminal procedure. From the nature of the proceedings of a court-martial it is not regarded as of much importance to have

2 McClure Dig. of Opinions, § 275, note 5, § 277.

McClure Dig. Opinions, § 276.

5 Winthrop Military Law & Prec.

McClure Dig. Opinions, §§ 278, 430.

an open statement either for the government or for the accused. It has been said that in complicated cases or where there are numerous charges and specifications that there may be some advantage both to the parties and the court for the judge-advocate to make a brief statement of the testimony intended to be offered to establish the charges and specifications and to state to the court the principles of law applicable to the case. These sometimes simplify and facilitate the trial and aid in the exclusion of collateral and irrelevant matters. The same applies to the statement of the defense where the witnesses are numerous or the points of law complicated. But in both instances argument should be avoided.

§ 3447. Swearing witnesses.-Before proceeding to hear any evidence the witnesses will all be called into the presence of the court and there have administered to them the oath or affirmation. While taking this oath the witnesses should stand with their right hands uplifted. The form of this oath or affirmation is: "You swear (or affirm) that the evidence you shall give, in the cause now in hearing, shall be the truth, the whole truth, and nothing but the truth. So help you God." The judge-advocate is authorized to administer the oath. And the judge-advocate may, where he is a witness, be sworn by the president of the court.8

§ 3448. Separation of witnesses.—As in civil or criminal cases the witnesses may be separated and all excluded from the room or the immediate presence of the court except the one called to testify. Before the taking of evidence is commenced the judge-advocate may direct all the witnesses to remain out of the room or out of hearing of the court. The purpose of this is to avoid any collusion or any influence that the testimony of one witness might have upon another who should hear the first and to arrive at the exact truth. This rule of exclusion should apply to witnesses for both sides. However, the rule is seldom applied to expert witnesses as it is not supposed that their testimony would be influenced by that of any other witness."

Article 92.

Act July 27, 1892, § 4.

8 McClure of Digest of Opinions,

'Winthrop Military Law and Prec. 125.

§ 274.

§ 3449. Order of introduction of testimony.-After the court is convened and the witnesses presented and sworn, the judge-advocate calls the first witness for the government and proceeds to examine him. This examination is made by propounding a series of questions to the witness and requiring him to answer each consecutively until he has thus given all that he knows as to the matter in controversy or touching the question of the accused. After the examination-inchief of each witness, the accused, by his counsel, is permitted to cross-examine with a view of testing the knowledge and truthfulness of the witness as well as to show any bias or prejudice that he may have, and with a further view of extracting any evidence favorable to him. When the judge-advocate has examined all the witnesses on the part of the government he again announces that the prosecution rests. The accused then introduces his witnesses and examines each, subject to cross-examination by the judge-advocate. On the conclusion of his evidence the government may then call any witnesses in rebuttal and the accused may again call witnesses to rebut any new matter developed on the rebuttal by the prosecution.10 The court will not limit the parties absolutely to this order but may hear witnesses entirely out of order and new matter may be introduced at any time before the conclusion of the evidence, or the argument. The admission of any new evidence is subject to the right of the other party to cross-examine and rebut.11

§ 3450. Hearing-Record of evidence and objections.-The general rules as to the method of taking evidence, reducing the same to writing, stating and considering objections as well as the rule permitting witnesses to correct their evidence, is thus stated by Mr. Greenleaf: "All evidence orally given in courts-martial, is taken down in writing by the judge-advocate, and recorded in the proceedings, in the words of the witness, as nearly as may be, and in the order in which it is received by the court. A question, being reduced to writing by the person propounding it, whether it be the prosecutor, the prisoner, or a member of the court, is handed to the president, and, if approved by him, it is read aloud and entered by the judgeadvocate on the record of the proceedings; after which, if no objection to it is sustained, it is addressed to the witness. If it is objected to by a single member only, of the court, the party propound

101 Winthrop Military Law &

Prec. 427, 510.

VOL. 4 ELLIOTT Ev.-47

"11 Winthrop Military Law & Prec. 429 and notes.

ing it is entitled to the collective opinion of the whole court as to its admissibility. And if the question is rejected by the court, the question and its rejection are still entered of record with the proceedings. If a witness wishes at any time before the close of all the testimony to correct or retrace any part of his evidence in which he has been mistaken, he will be allowed to do so; but this must be done by an addition to what he has before stated; and not by way of erasure or obliteration; it being important, in all cases, that the superior authority, which reviews the evidence, should have an accurate, and, as it were, a dramatic view of all that transpired at the trial."12

§ 3451. Questions by members of court. The members of a court-martial sit as the judges and they have the same right to ask questions as judges in civil and criminal cases. While it is not their duty to conduct the examination yet it is their right and privilege to ask questions for the purpose of satisfying their own minds on any matter which is not clear to them. Or any member desiring further information may suggest a question to the judge-advocate or to the counsel for the accused. And the court as such, for the purpose of a more thorough investigation, may call upon the judge-advocate to procure, if practicable, certain material evidence that has not been introduced and may give ample time by adjournment for the production of such evidence. 18

§ 3452. Decision and penalty.-On the conclusion of the evidence and the argument the court shall proceed to determine by vote as to the guilt or innocence of the accused. This determination shall be by a vote of the members of the court and in giving their votes it is expressly declared that court shall begin with the youngest in commission.1 It is also provided that no person shall be sentenced to suffer death, except by the concurrence of two-thirds of the members of the court.15 When the vote is a tie on any charge or specification it is equivalent to a finding of not guilty, a majority being necessary to conviction. But in such cases the record should not state that in consequence of such tie vote the accused was therefore acquitted. The only showing that can be made by the records in such case is that the vote on the charge or specifications was a tie.16

12 3 Greenleaf on Evidence, § 492. 131 Winthrop Military Law & Prec. 429, 430.

15 Article 96.

16 McClure Dig. of Opinions, § 1364.

14 Article 95.