room rules on examination and cross-examination of witnesses are relaxed at Article 32 Investigations.

Since the Article 32 Investigation is an inquiry into the facts surrounding charges against the accused, the investigating officer is not limited to the evidence presented by the government. If desirable, the investigating officer or the accused can call witnesses, present evidence, or raise matters in defense or extenuation and mitigation.

During the course of the Article 32 Investigation legal questions may arise. The investigating officer is not expected to rule on any legal objections or motions raised by the accused or his defense counsels during the investigation. If legal questions are raised, the accused and the defense counsel should be instructed to present their objections to the general court-martial convening authority or the military judge.

At the conclusion of the hearing the Article 32 investigating officer prepares a summarized statement of each witness's sworn testimony presented at the investigation and has each witness sign his statement. There is no requirement that the Article 32 officer submit a verbatim record of the investigation.

After evaluating all of the evidence presented during the hearing, the Article 32 officer must make a recommendation regarding the disposition of the charges against the accused. He can recommend dismissal of all or part of the charges, a change or amendment to the charges, trial by a lower court-martial, trial by general court-martial, or any other action which he deems to be appropriate. The Investigating Officer's Report of Investigation, including the statements of the witnesses and his recommendations, is filed then with the officer who appointed him. The investigation should be completed as soon as possible after charges have been preferred to ensure compliance with the UCMJ's requirement for prompt disposition of charges. With regard to prompt disposition, Article 33 of the Code specifically provides:

When a person is held for trial by general court-martial for commanding officer shall, within eight days after the accused is ordered into arrest or confinment, if practicable, forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction. If that is not practicable, he shall report in writing to that officer the reasons for delay.

Upon being notified of his appointment, the Article 32 investigating officer usually is advised that he has 48 hours to complete his investigation and submit his final report. If the investigation cannot be completed within the prescribed time period, the investigating officer must submit an explanation setting forth reasons for the delay.

REFERRAL TO TRIAL

Upon completion of the Article 32 Investigation, the Investigating Officer's Final Report, the charge sheets, and allied papers are forwarded to the general court-martial convening authority. If the inves

tigating officer has recommended trial by general court-martial, the general court-martial convening authority must refer the charges to his Staff Judge Advocate for the preparation of a pretrial advice. This procedure is prescribed by Article 34(a), UCMJ, which states that:

Before directing the trial of any charge by general court-martial, the convening authority shall refer it to his staff judge advocate or legal officer for consideration and advice. The convening authority may not refer a charge to a general court-martial for trial unless he has found that the charge alleges an offense under this chapter and is warranted by evidence indicated in the report of investigation.

As a practical matter, the charge sheets and allied papers are sent to the convening authority's Staff Judge Advocate for review before they are received by the convening authority.

Upon receiving the file, the Staff Judge Advocate must review the case and prepare a pretrial advice for the general court-martial convening authority. The pretrial advice includes a written and signed statement of the Staff Judge Advocate's findings regarding the following matters: whether there has been substantial compliance with the provisions of Article 32; whether each specification alleges an offense under the Code; and whether the allegation of each offense is warranted by evidence indicated in the report of investigation. After signing the pretrial advice, the Staff Judge Advocate forwards it and his recommendation for action to the general court-martial convening authority.

On military justice matters, the Staff Judge Advocate deals directly with the convening authority, and is not required to go through the Chief of Staff or executive officer except for informational purposes. If the case is referred to trial, the entire case file, including the Article 32 Investigator's Report and the Staff Judge Advocate's pretrial advice, is included in the record of trial.

The general court-martial convening authority has complete discretion in the disposition of the case presented to him and none of the recommendations included in the file are obligatory upon him. After reading the pretrial advice and discussing the charges with the Staff Judge Advocate, the convening authority must make a decision as to whether to refer the case to trial by general court-martial or to return the file to the unit commander for disposition deemed appropriate. In most cases, the convening authority relies on his Staff Judge Advocate's recommendation for disposition of the charges. If the convening authority decides that the charges are to be tried by general court-martial, he refers the case to a general court-martial convening order for trial by general court-martial.

TRIAL

Listed in the court-martial convening order are the names of the military judge, the trial counsel, defense counsel, and jurors who will

participate in the court-martial proceedings. New jurors are selected on a regular basis by the convening authority from an officers' roster prepared by the staff section charged with maintaining all duty rosters. The Manual for Courts-Martial requires that the convening authority select jurors who, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. Although the convening authority selects the jurors, the UCMJ strictly prohibits the convening authority or commanders from exercising any influence which might affect the actions or decisions of the jurors.

The court-martial jurors selected by the convening authority usually are officers. However, an enlisted accused may request that enlisted members be included in the membership of the jury. A request for enlisted jurors must be made in writing, signed by the accused, and directed to the convening authority. If such a request is submitted, at least one-third of the jurors selected to hear the case must be enlisted personnel. A failure to comply with a request to include enlisted personnel in the membership of the court is jurisdictional error and warrants reversal on appeal.

The military judge, prosecutor, and defense counsel also are detailed by the convening authority. Each must be admitted to practice to the bar of a federal court or the highest court of a state and each must be certified to perform his respective duties by The Judge Advocate General of the Army. The military judge is made available to the commander from the United States Army Judiciary in Washington, D.C.

A general court-martial consists of a military judge and not less than five jurors. If an accused requests trial by military judge alone, the court-martial consists of the military judge. In capital cases, where the maximum sentence is death or life imprisonment, an accused cannot be tried by military judge alone. The defense counsel in general courtsmartial will be the same counsel who represented the accused at the Article 32 Investigation.

General courts-martial conform to the federal procedural rules for federal civilian courts as nearly as possible. Military judges have about the same judicial powers in criminal trials as federal court judges have. The military judge's powers are a result of the Military Justice Act of 1968.

The procedures to be followed in military courts-martial are prescribed by the Manual for Courts-Martial. The Manual also sets forth evidentiary rules which for the most part follow the Federal Rules. For example, an accused in the military has the right to remain silent, and the prosecution is not permitted to comment on the failure of the accused to testify. In addition, the Manual provides that an accused can testify fully or limit his testimony to a particular aspect of a case: for example, the voluntariness of a confession. The scope of crossexamination of an accused can be limited significantly if the accused

chooses to testify only to particular aspects of the case.

Once a case is referred to trial, the prosecutor has many administrative duties to perform. He is responsible for the setting of a date for trial and reserving a courtroom. He also must notify all personnel of the time of trial, secure the attendance of witnesses, including those requested by the defense, make arrangements for the presence of the accused, gather the evidence, and serve the charges on the accused. Upon the conclusion of the trial he must submit a result of trial to the convening authority and make arrangements for paying civilian and military witnesses. At some installations the prosecutor may have the assistance of an assistant trial counsel, or a military lawyer's assistant, but at many posts he will have no assistance.

After the presentation of the prosecution's case and the defense's case and at the conclusion of arguments and instructions, the jurors are asked to render a verdict as to the accused's guilt or innocence on the charges presented. In military courts-martial, the jury's verdict is referred to as the court's findings. If the jurors return with findings of not guilty, the accused is acquitted and the trial is ended. If the jurors find the accused guilty of all or some of the charges, the court-martial proceeds onto sentencing. In a trial by military judge alone, the judge's verdict also is referred to as the court's findings, and similarly, if the accused is found guilty of the charges and specifications, the courtmartial proceeds to sentencing.

During the sentencing portion of court-martial, the personal data concerning the accused and matters in aggravation, extenuation and mitigation are presented. The matters presented in aggravation by the prosecution and in extenuation and mitigation by the defense are considered by the court members in adjudging an appropriate sentence. During sentencing the accused may remain silent, make an unsworn statement upon which he may not be cross-examined, or make a sworn statement on which he is subject to cross-examination. The accused also may elect to remain silent and let his defense counsel make an unsworn statement on his behalf. After each side has presented matters to be considered on sentencing, counsel for both sides present argument and the military judge instructs the jurors on their sentencing responsibilities.

Sentencing procedures in the military are unlike those in most civilian jurisdictions where trial judges impose all sentences. In military courts-martial the jurors adjudge the sentences. Only in cases tried before military judge alone, are sentences not imposed by jurors.

POST TRIAL PROCEDURES

The military justice system's appellate system is elaborate, effective and cost-free and is unrivaled in civilian criminal practice. After a court reporter has typed up a verbatim record of trial, the military judge who

tried the case, reads the record and signs his name to it authenticating that the record of trial is complete and accurate. Paragraph 826(1) of the Manual for Courts-Martial requires that a verbatim record of trial be prepared in cases in which the sentence adjudged includes a punitive discharge or confinement at hard labor for more than 6 months.

Before the convening authority acts to approve, reduce, or disapprove the results of trial, he is required to submit the record of trial to his Staff Judge Advocate for review and advice. See Articles 61 and 65(b), UCMJ. The Staff Judge Advocate's written post trial review must include a summary of the evidence presented at the trial; an opinion as to the adequacy and weight of the evidence; a specific recommendation as to the action to be taken by the convening authority; and reasons for the opinions and recommendations suggested in the post trial review.

In submitting his opinion as to the correctness of the court's findings, the Staff Judge Advocate must look solely to the evidence presented during the trial. In submitting his opinion as to the appropriateness of the sentence, however, the Staff Judge Advocate is permitted to refer to matters from outside the record if such matters will assist the convening authority in approving an appropriate sentence. If adverse matter is included in the post trial review, the accused must be afforded an opportunity to rebut or explain the matter, unless it is found that he supplied the information or it is noted in his official records.

The primary purpose of the Staff Judge Advocate's post trial review is to provide the convening authority with a full, fair and impartial review of that which transpired at the trial and the effect of any irregularity or error. In determining whether to approve or disapprove the findings and sentence in a case presented to him for action, the convening authority relies heavily on this written review and the opinions and recommendations of his Staff Judge Advocate.

In addition to the matters formally presented to the post trial review, the convening authority also may consider matters presented by the defense in the form of a petition for clemency. At the conclusion of a trial, the defense counsel may prepare and submit a clemency petition to the convening authority on the accused's behalf. In some cases, it is possible for the defense counsel to persuade the jurors to sign a petition recommending clemency. Any recommendation for clemency, however, must be based on a genuine desire on the part of the jurors for the exercise of leniency by the convening authority and should not be based upon any doubt as to the guilt of the accused.

Paragraph 85c of the Manual for Courts-Martial provides guidance for the general court-martial convening authority once the post trial review and petitions for clemency have been submitted to him:

Ordinarily, the convening authority should accept the opinion of his staff judge advocate or legal officer as to the effect of any error or irregularity respecting the proceeding, as to the adequacy of the evidence, and as to what sentence can