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Entry of a nolle prosequi will not be exercised arbitrarily or unfairly to the accused. For instance, when evidence has been received in support of a specification and it appears that, through lack of diligence in the preparation, the evidence may be insufficient to sustain a finding of guilty and that a finding of not guilty is imminent, a nolle prosequi will not be employed to circumvent such a finding with a view toward a subsequent trial for the same offense.

A nolle prosequi is not in itself equivalent to an acquittal or to a grant of pardon and is not as such a ground of objection or of defense in a subsequent trial, but if entered pursuant to a grant of immunity (134d) such grant of immunity may be asserted as a defense.

As to withdrawal of charges, see 5 (Appointing Authorities).

74. ACTION WHERE EVIDENCE INDICATES AN OFFENSE NOT CHARGED. If at any time during the trial it becomes manifest to the court that the available evidence as to any specification is not legally sufficient to sustain a finding of guilty thereof or of any lesser included offense thereunder, but that there is substantial evidence, either before the court or offered, tending to prove that the accused is guilty of some other offense not alleged in any specification before the court, the court may, in its discretion, either suspend trial pending action on an application by the trial judge advocate to the appointing authority for directions in the matter or proceed with the trial. In the latter event a report of the matter may properly be made to the appointing authority after the conclusion of the trial.

Application of this rule would be appropriate when in a trial for the larceny of a watch the proof shows that the article taken was a compass, and when in a trial for the wrongful sale of property (A. W. 84) the proof shows that the accused negligently lost the property.

In any such case, if charges for the offense indicated by the evidence are preferred and are referred for trial, they should be referred to a court none of whose members has participated in the former trial.

75. INTRODUCTION OF EVIDENCE-a. General duties of court. When proffered evidence would be excluded on objection the court should bring the matter to the attention of any party entitled, but failing, to object, ex

cept where such failure amounts to a waiver. Such action is particularly important when improper questions are asked by a member of the court, or when improper testimony is elicited by questions of a member of the court, the reasons for this being the natural hesitancy of the parties to object to a question asked by a member of the court and the weight likely to be given to testimony elicited through questions by the court or by a member. In the interest of justice a court may always of its own motion exclude inadmissible evidence.

Rules of evidence are stated in 123140 and in various connections throughout the manual; for example, in 112c (Insanity) and in 146 (Desertion).

The court is not obliged to content itself with the evidence adduced by the parties. When such evidence appears to be insufficient for a proper determination of any issue or matter before it, the court may and ordinarily should take appropriate action with a view to obtaining such available additional evidence as is necessary or advisable for such determination. The court may, for instance, require the trial judge advocate to recall a witness, to summon new witnesses, or to make investigation or inquiry along certain lines with a view to discovering and producing additional evidence.

See 112 for action by the court when it appears that further inquiry into the mental responsibility of the accused is warranted in the interest of justice.

In its discretion the court may direct that a document, although excluded as not admissible in evidence, be marked for identification and appended to the record for the consideration of the reviewing authority, and the court will so direct on request of the party offering the document. See 140c (Offer of Proof).

When a document, which must or should be returned to the source from which it was obtained, such as an original record, is received in evidence or marked for identification, a suitable copy or extract copy thereof, certified as such by the trial judge advocate, will be substituted for such document and it will then be returned.

The court will explain to the accused his right to remain silent, or to testify as a witness (134d, 135b; A. W. 24), or to make an unsworn statement (76), unless it clearly appears that the accused

fully understands his rights in the premises. The explanation is usually made after the prosecution has rested. See Appendix 5 for an example. Whenever it appears warranted, the court should advise the accused of his right to testify for a limited purpose. For example, if it appears that the accused does not understand his right to testify for the limited purpose of showing the circumstances under which a confession was obtained without subjecting himself to cross-examination on the issue of guilt or innocence, an explanation should be made by the court. See 127, 135b.

The court should protect every witness from improper questions, harsh or insulting treatment, and unnecessary inquiry into his private affairs. The court should also forbid any question which appears to be intended merely to annoy a witness or which, though otherwise proper, is needlessly offensive in form. See 136 and Article 24 for questions which a witness can not be required to answer over his objection.

b. General duties of trial judge advocate. As to preparation for trial, attendance of witnesses, sending out interrogatories for depositions, and swearing of witnesses, see 41, 105, 106, and 103, respectively.

After the pleas the trial judge advocate will, to the extent required by the court, read the parts of the Manual for CourtsMartial or of authoritative precedents that are pertinent to the definition, proof and defense of the offenses charged.

He may make an opening statementthat is, a brief statement of the issues to be tried and what he expects to provebut will avoid including or suggesting matters as to which no admissible evidence is available or intended to be offered. Ordinarily such a statement is made only immediately before the introduction of evidence for the prosecution, but in exceptional cases the court may, in its discretion, permit like statements to be made at later stages of the proceedings.

On behalf of the prosecution he conducts the direct and redirect examination of the witnesses for the prosecution and the cross and recross examination of the witnesses for the defense. He will, unless the court otherwise directs, conduct the direct and redirect examination of witnesses for the court, and if such witnesses are adverse to the prosecution,

may conduct the cross-examination on behalf of the prosecution.

c. General duties of defense counsel. He may make an opening statement for the defense similar to that indicated in 75b. This statement is ordinarily made just after the prosecution has rested or immediately following the opening statement of the trial judge advocate; but in exceptional cases the court may in its discretion permit it or other like statements to be made at other stages of the proceedings.

On behalf of the defense he conducts the direct and redirect examination of the witnesses for the defense and the cross and recross-examination of the witnesses for the prosecution and of the witnesses for the court if they are adverse to the defense.

As to preparation for trial, attendance of witnesses, and submission of interrogatories for depositions, see 45, 105, and 106, respectively.

d. Views and inspections. In exceptional circumstances the court, in the exercise of its sound discretion, may proIceed to view or inspect the premises or place or an article or object if such view or inspection is necessary to enable the members better to understand and apply the evidence in the case. The proceeding is authorized only if conducted in the presence of the accused and his counsel and should not be undertaken if the court is already familiar with the premises involved, or if photographs, diagrams or maps adequately present the situation. The court may be escorted to the view by any person familiar with the premises and objects. The escort may point out particular features to be noted by the court without making any statement in the nature of evidence or argument. Unless he is already sworn as a member of the prosecution, the escort will take the following oath or affirmation:

"You swear (or affirm) that you will conduct the court and will well and truly point out to them the place in which the offense charged in this case is alleged to have been committed; and that you shall not speak to the court concerning the alleged offense, except to describe the place aforesaid. So help you God."

The things seen by the court during the view or inspection are not evidence, but the members may consider and apply the evidence in the light of the knowledge obtained by their inspection.

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76.

STATEMENTS. The accused, whether he has testified or not, may make an unsworn statement to the court in denial, explanation, or extenuation of the offenses charged, but this right does not permit the filing of the affidavit of the accused. This unsworn statement is not evidence, and the accused can not be cross-examined upon it, but the prosecution may rebut statements of fact therein by evidence. Such consideration will be given the statement as the court deems warranted.

The statement may be oral or in writing, or both, and may be made by the accused, by counsel, or by both. A written statement should be signed, and is ordinarily read to the court by the accused or by counsel.

The statement should not include what is properly argument, but ordinarily the court will not check a statement on that ground if it is being made orally and personally by an accused.

If the statement made by an accused includes admissions or confessions, they may be considered as evidence in the case, but in a joint or common trial the statement by one accused is not evidence against his coaccused. If a statement made by either accused or counsel is inconsistent with a plea of guilty or indicates that such plea may have been entered improvidently or through lack of understanding of its meaning and effect, the court will take appropriate action as set forth in 71 (Pleas).

77. ARGUMENTS. After both sides have rested, arguments may be made to the court by the trial judge advocate, the accused, and his counsel. The trial

judge advocate has the right to make the opening argument, and if any argument is made on behalf of the defense, the closing argument. Arguments throughout the trial may be oral, in writing, or both, unless the court requires an argument to be reduced to writing. See 41d and 45b. Arguments in writing will ordinarily be read to the court by the party who submits them. The last subparagraph of 76 applies equally to arguments.

The failure of an accused to take the stand must not be commented upon; but if he testifies on the merits with respect to an offense charged, and if he fails in such testimony to deny or explain specific facts of an incriminating nature that the evidence of the prosecution tends to establish with respect to that offense, such failure may be commented upon. When, however, an accused is on trial for a number of offenses and, taking the stand in his own defense, testifies to one or more of them only, no comment can be made on his failure to testify as to the others.

Refusal of a witness to answer a proper question may be commented upon.

As to permissible comments on the fact that one witness testified after hearing another, see 135 (Examination of Witness).

After the arguments and before the court closes for the findings, both sides should be asked whether they have anything further to offer.

78. FINDINGS-a. General-Basis of findings. Only matters properly before the court as a whole may be considered. A member should not, for instance, be influenced by any knowledge of the acts, character, or service of the accused not based on the evidence or other proper matter before the court; or by any opinions not properly in evidence; or by motives of "partiality, favor, or affection." See in this connection 76 (Statements) and 77 (Arguments). Matters as to which comment in argument is prohibited can not be considered.

In weighing the evidence a member is, however, expected to utilize his common sense and his knowledge of human nature and of the ways of the world. In the light of all the circumstances of the case he should consider the inherent probability or improbability of the evidence, and with this in mind he may properly believe one witness and disbelieve several witnesses whose testimony

is in conflict with that of the one. See in this connection 139 (Credibility of witnesses) and 127 (Confessions).

Reasonable doubt. In order to convict of an offense the court must be satisfied beyond a reasonable doubt that the accused is guilty thereof. See Article 31. By "reasonable doubt" is intended not fanciful or ingenious doubt or conjecture but substantial, honest, conscientious doubt suggested by the material evidence, or lack of it, in the case. It is an honest, substantial misgiving, generated by insufficiency of proof. It is not a captious doubt, nor a doubt suggested by the ingenuity of counsel or court and unwarranted by the testimony; nor a doubt born of a merciful inclination to permit the defendant to escape conviction; nor a doubt prompted by sympathy for him or those connected with him. The meaning of the rule is that the proof must be such as to exclude not every hypothesis or possibility of innocence but any fair and rational hypothesis except that of guilt; what is required being not an absolute or mathematical certainty but a moral certainty. A court-martial which acquits because, upon the evidence, the accused may possibly be innocent falls as far short of appreciating the proper amount of proof required in a criminal trial as does a court which convicts on a mere possibility that the accused is guilty.

The rule as to reasonable doubt extends to every element of the offense. If, in a trial for assault with intent to kill, a reasonable doubt exists as to such intent, the accused can not properly be convicted as charged, although he might be convicted of the lesser included offense of assault. Prima facie proof of an element of an offense does not preclude the existence of a reasonable doubt with respect to that element. The court may decide, for instance, that the prima facie evidence presented does not outweigh the presumption of innocence.

If a reasonable doubt exists as to the mental responsibility of an accused for an offense charged, the accused can not legally be convicted of that offense. See 110b as to the standard of mental responsibility and 112a as to the burden of proof and presumption of sanity.

A reasonable doubt may arise from the insufficiency of circumstantial evidence, and such insufficiency may be with respect either to the evidence of the cir

cumstances themselves or to the strength of the inferences drawn from them.

Reasons for findings; divulging or disclosing findings. No finding should include any indication of the reasons for making it. For the information of the reviewing authority but not as part of a finding, the court may formulate for inclusion in the record a statement of the reasons which led to a finding and a statement of the weight given to certain evidence. A proper occasion for such action arises when the court finds an accused not guilty because of a reasonable doubt as to his sanity.

See Article 19 as to divulging findings and as to disclosing or discovering the vote or opinion of a member upon the findings.

Acquittal; statute of limitations. Whenever the court has acquitted an accused upon all specifications and charges, the court shall at once announce such result in open court. An acquittal automatically results from findings of not guilty of all charges and specifications.

If by exceptions and substitutions an accused is found guilty of a lesser included offense against which it appears that the statute of limitations (A. W. 39) has run, the court will advise him in open court of his right to avail himself of the statute in bar of punishment if he so desires. However, if an accused pleads guilty upon arraignment to such lesser included offense and persists in his plea after the meaning and effect thereof have been explained to him, including his right to interpose the statute of limitations in bar of punishment if he is found guilty of the lesser included offense, he is deemed to have waived the statute of limitations unless he expressly asserts it in bar of punishment. If an accused asserts the statute in bar of punishment, the issue will be determined in substantially the same manner as the corresponding issue upon a motion to dismiss on the grounds of the statute of limitations (67).

b. Findings as to the charges. Permissible findings include guilty; not guilty; not guilty, but guilty of a violation of the ------ Article of War.

An attempt should be found as a violation of Article 96 unless the attempt is included in the express terms of some other article.

The finding of the charge as to any specification should be supported by, and not be inconsistent with, the finding as

to that specification. Thus, if two specifications of desertion are under one charge and the accused is found guilty of the first specification, but guilty of absence without leave only as to the second specification, the finding should be: Of the Charge: As to Specification 1: Guilty. As to Specification 2: Not guilty, but guilty of a violation of the 61st Article of War. A finding of guilty of one specification appropriate to its charge requires a finding of guilty of the charge, but a finding of not guilty of another such specification under that charge does not require any finding of the charge as to it. Thus, upon finding an accused guilty of one of the two specifications under a proper charge, and not guilty of the other, the finding of the charge should be simply guilty.

A court may not find an offense as a violation of an Article of War under which it was not charged solely for the purpose of increasing the authorized punishment or for the purpose of saving the jurisdiction of the court. For example, in the case of an officer charged with a violation of Article 95 the court may not find him guilty of a violation of Article 96 in order to adjudge confinement, although, if the circumstances warrant, the court may properly find the accused guilty of a violation of Article 96 in such a case and adjudge dismissal or a lesser sentence. Similarly, if an accused is charged with a violation of Article 93 for an offense committed during a previous enlistment, the offense can not be considered as a violation of Article 94 for the purpose of saving the jurisdiction of the court even though the offense alleged in the specification might in the beginning properly have been laid under Article 94. See 87b.

c. Findings as to the specification— General. Permissible findings include guilty, not guilty, guilty with exceptions, with or without substitutions, and not guilty of the exceptions and guilty of any substitutions, as stated below.

The finding should be consistent with itself. A finding of guilty without criminality should not be made.

Any different findings as to two or more joint accused should be consistent with one another. When one of two joint accused is found not guilty and the other is found guilty, the name of the former as well as the words indicating a joint offense should be eliminated from the specification by the finding as to the

latter. When, however, three or more accused are involved, it is sufficient if the findings as to each accused clearly appears from reading of all the findings together.

Exceptions and substitutions. One or more words or figures may be excepted and, where necessary, others substituted, provided the facts as so found constitute an offense by an accused which is punishable by the court, and provided that such action does not change the nature or identity of any offense charged in the specification or increase the amount of punishment that might be imposed for any such offense. The substitution of a new date or place may, but does not necessarily, change the nature or identity of an offense.

Lesser included offenses. If the evidence fails to prove the offense charged but does prove the commission of a lesser offense necessarily included in that charged, the court may by its findings except appropriate words and figures of the specification, and, if necessary, substitute others, finding the accused not guilty of the excepted matter but guilty of the substituted matter. The test as to whether an offense found is necessarily included in that charged is that it is included only if it was necessary in proving the offense charged to prove all elements of the offense found. A familar instance is a finding of guilty of absence without leave under a charge of desertion. Such a finding may be worded when the specification is in the usual form: Of the specification: Guilty, except the words "desert" and "in desertion", substituting therefor, respectively, the words "absent without leave from" and "without leave", of the excepted words, not guilty, of the substituted words, guilty.

In the discussion of certain offenses in 141-183 (Punitive Articles) some of the included offenses are stated.

d. Procedure. After both sides have rested and before the court retires into closed session for the purpose of arriving at its findings the law member of a general court-martial or the president of a special court-martial will, in open court, advise the court that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt shall

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