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DA PAM 27–9–1 Military Judges

Department of the Army Pamphlet 27–9–1
Legal Services
Military Judges’ Benchbook For Trial of Enemy Prisoners of War
Headquarters Department of the Army Washington, DC 4 October 2004
UNCLASSIFIED


SUMMARY of CHANGE
 
DA PAM 27–9–1
 Military Judges’ Benchbook for Trial of Enemy Prisoners of War
 
This is a new Department of the Army Pamphlet specifically tailored for trials
 
of enemy prisoners of war (EPWs) for either pre-capture offenses, which arise
 under the law of war, or post-capture offenses, which arise under the Uniform
 Code of Military Justice. This Pamphlet incorporates the provisions of the
 Geneva Convention Relative to the Treatment of Prisoners of War of August 12,
 1949 (GC III), Chapter 3, Penal and Disciplinary Sanctions, into the substantive
 and procedural requirements found in DA Pam 27-9, Military Judges’ Benchbook (15
 Sep 2002 edition), and in the Manual for Courts-Martial (2002 edition). This
 Pamphlet also includes decisions of international, military, and higher courts;
 and comments and opinions of individual legal specialists on international and
 criminal law. Below are some of the highlights of this Benchbook:
 

o Adds the substantive and procedural provisions of GC III, Chapter 3:
 


--Provides instruction on the use of an interpreter, if necessary, in the
 accused’s preparation of trial and at the trial.
 
--Provides instruction on the notification and service requirements under GC
 III in both a case not referred capital and in a case referred capital.
 
--Provides instruction on the accused’s rights to a qualified advocate or
 counsel IAW the GC III.
 
--Provides instruction on the types of punishments applicable to EPWs.
 
--Provides instruction on post-trial and appellate rights advice.
 
o Adds references to GC III, the Geneva Convention Relative to the Protection
 

of Civilian Persons in Time of War of August 12, 1949 (GC IV), and relevant
 criminal trials of EPWs.
 

o Adds pre-capture criminal offenses for law of war violations.
 


--Provides pattern instructions for offenses derived from the offenses listed
 in Military Commission Instruction No. 2 (30 Apr. 2003). See Military Order of
 13 November 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in
 the War Against Terrorism,” 66 F.R. 57833 (16 Nov. 2001); Military Commission
 Order No. 1 (21 Mar. 2002).
 
--Provides pattern instructions for offenses derived from the law of war.
 
o Adds defenses under the laws of war that may apply to pre-capture
 offenses.
 
Headquarters Department of the Army
Department of the Army
Pamphlet 27–9–1
Washington, DC 4 October 2004
Legal Services
 
Military Judges’ Benchbook for Trial of Enemy Prisoners of War
 
By order of the Secretary of the Army: Peter j. Schoomaker, General, United States Army, Chief of Staff.
Official:
Joel B. Hudson, Administrative Assistant to the Secretary of the Army
History. This publication is a new Department of the Army Pamphlet.
Summary. This pamphlet sets forth pattern instructions and suggested procedures applicable to trials of enemy prisoners of war by general and special court-martial. It has been prepared primarily to meet the needs of military judges. It is also intended as a practical guide for counsel, staff judge advocates, commanders, legal specialists, and others engaged in the administration of military justice.
Applicability. This pamphlet applies to the Active Army, the Army National Guard of the United States, and the U.S. Army Reserve.
Proponent and exception authority.
The proponent of this pamphlet is The Judge Advocate General. The proponent has the authority to approve exceptions or waivers to this regulation that are consistent with controlling law and regulations. The proponent may delegate this approval authority, in writing, to a division chief within the proponent agency or a direct reporting unit or field operating agency of the proponent agency in the grade of colonel or the civilian equivalent. Activities may request a waiver to this regulation by providing justification that includes a full analysis of the expected benefits and must include formal review by the activity’s senior legal officer.  All waiver requests will be endorsed by the commander or senior leader of the requesting activity and forwarded through their higher headquarters to the policy proponent. Refer to Army Regulation 25–30 for specific guidance.
Suggested improvements. Users are invited to send comments and suggested improvements to this pamphlet on DA Form 2028 (Recommended Changes to Publications and Blank Forms) directly to the Office of the Chief Trial Judge, U.S. Army Legal Services Agency, ATTN: JALS–TJ, 901 N. Stuart St., Arlington, VA 22203.
Distribution. This publication is intended for the Active Army, the Army National Guard of the United States, and  the U.S. Army Reserve.
Department of the Army Pamphlet 27–9–1 Military Judges’ Benchbook for the Trial of Enemy Prisoners of War
Chapter 1 ............................... INTRODUCTION
 
Chapter 2 ............................... TRIAL PROCEDURE AND INSTRUCTIONS
 Chapter 3 ............................... INSTRUCTIONS ON ELEMENTS OF OFFENSES
 
Chapter 4...............................CONFESSIONS INSTRUCTIONS
 
Chapter 5 ............................... SPECIAL AND OTHER DEFENSES
 Chapter 6 ............................... MENTAL CAPACITY AND RESPONSIBILITY
 Chapter 7 ............................... EVIDENTIARY INSTRUCTIONS
 
Chapter 8 ............................... TRIAL PROCEDURE AND INSTRUCTIONS FOR A CAPITAL CASE
 Appendix A............................ References
 Appendix B............................ Findings Worksheets
 Appendix C............................ Sentence Worksheets
 Appendix D............................ Rehearings, New or Other Trials and Revision Procedure
 Appendix E............................Contempt Procedure
 Appendix F............................Reserved
 Appendix G ........................... General and Special Findings
 Appendix H............................ Rules of Practice Before Army Courts-Martial
 Appendix I ............................. Form for Certificate of Correction of Record of Trial
 Appendix J ............................ Instructions Checklists
 Appendix K............................ Dubay Hearing Procedure
 Glossary
 

DA PAM 27-9-1  •  4 October 2004


Chapter 1
 INTRODUCTION
 

1–1. Purpose and scope.
A. Purpose. This Military Judges’ Benchbook for Trial of Enemy Prisoners of War (EPWs)1 sets forth certain procedural steps required in the trial by court-martial of persons protected by the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (GC III), including certain civilian personnel protected by the GC III.  Under Article 102, GC III, EPWs can be validly sentenced only if they are sentenced under (1) the same court system and
(2)
the same procedures as members of the armed forces of the Detaining Power (DP) AND if

(3)
the court follows the provisions of Chapter 3, Penal & Disciplinary Sanctions, GC III. This Benchbook modifies DA Pam 27-9, Military Judges’ Benchbook, to incorporate the provisions of Chapter 3, GC III.


This Benchbook does not purport to discuss or resolve the substantive questions which may arise in the trial by court-martial of EPWs nor does it purport to exhaust all of the procedural issues which may arise in such a trial. Pertinent provisions of the GC III and authoritative precedents should be consulted before the trial of EPWs. Under Article 11, GC III, if the parties disagree “as to the application or interpretation” of the GC III, the Protecting Power (PP) “shall lend their good offices with a view to settling the disagreement.” Procedural requirements under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (GCC), particularly Articles 64-78, for persons not protected under the GC III are not included herein.
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B. Application of the GC III. Article 102, GC III, provides that EPWs “can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter [III, Penal and Disciplinary Sanctions, GC III,] have been observed.” This Benchbook does not resolve the substantive question of which is the proper forum (military court or federal or state court) to try EPWs, but it operates on the presumption that EPWs will be tried by court-martial for an offense of which a member of the U.S. armed forces would likely be tried by court-martial. Therefore, this Benchbook would apply to an accused who is classified as an EPW by an Article 5, GC III, tribunal and who is tried by court-martial.
(1)
Procedures. This Benchbook incorporates certain additional safeguards provided by the GC III that must be scrupulously observed whenever EPWs are tried by court-martial. See FM 27-10, The Law of Land Warfare, paragraphs 158-184, citing Articles 82-108, GC III.

(2) Substantive offenses.

(a)
LOW offense: EPWs may be prosecuted for pre-capture criminal offenses under the law of war (LOW), i.e., war crimes (as opposed to warlike acts covered by combatant immunity).

(b)
UCMJ violation. EPWs may be prosecuted for post-capture criminal offenses under the Uniform Code of Military Justice (UCMJ). Article 82, GC III, provides that EPWs are “subject to the laws, regulations, and orders in force in the armed forces of the Detaining Power; the Detaining Power shall be justified in taking judicial or disciplinary [e.g., nonjudicial punishment] measures in respect of any offense committed by a prisoner of war against such laws, regulations or orders….If any law, regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable, whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power, such acts shall entail disciplinary punishments only.” Likewise, Article 2(9), UCMJ, specifically provides that EPWs are subject to the UCMJ, and thus may be tried for post-capture criminal offenses under the UCMJ as well as under the LOW (Part I, para. 1-2, Manual for Courts-Martial, United States, 2002 Edition (MCM)).

(3) Types of court-martial.

(a)
LOW offense:2 A LOW offense must be tried by a general court-martial. Art. 18, UCMJ; RCM 201(f)(1)(B) and 202(b). See RCM 307(c)(2), Discussion, for drafting of charges under LOW.

(b)
UCMJ violation. EPWs may be tried by the same levels of courts-martial under the UCMJ (e.g., general, special, or summary courts-martial) as members of the U.S.

2 There is a debate whether the procedural requirements of Article 102, GC III, apply to pre-capture criminal offenses. See Howard S. Levie, Enforcing the Third Geneva Convention on the Humanitarian Treatment of Prisoners of War, 7 USAFA J. Leg. Stud. 37, 41-42 (1996-1997). As noted earlier, this Benchbook does not address the substantive question of which is the proper forum, but presumes that a policy decision has been made subjecting EPWs to trial by court-martial for pre-capture offenses.

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armed forces. Art. 2(9), UCMJ; Art. 102, GC III. In addition, AR 27-10, paragraph 5-3c, contemplates that EPWs may be tried by special courts-martial. Although this Benchbook is primarily designed for general and special courts-martial, a summary court-martial should include the procedures of this Benchbook that incorporate the provisions of Chapter 3, GC III.
1 For purposes of this Benchbook, the accused is a person detained by the U.S. armed forces who is classified as an “enemy prisoner of war” (EPW). An EPW is a person entitled to prisoner of war (POW) status as defined in Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (GC III).

1-2 Military Judges
A. Obligations, duties, and essential characteristics of military judges. Although the primary purpose of this Benchbook is to assist military judges in the preparation of trial instructions in courts-martial concerning EPWs, military judges must constantly be mindful of their judicial responsibilities in and out of the courtroom. In this regard, additional guidance may be found in publications of such organizations as the American Bar Association, American Judicature Society, and National Conference of State Trial Judges. Particular attention should be given to the Code of Judicial Conduct and Standards for the Administration of Criminal Justice pertaining to the Special Functions of the Trial Judge as promulgated by The American Bar Association. The Code of Judicial Conduct for Army Trial and Appellate Judges applies to military judges presiding over trials of EPWs.
A military judge must maintain a thorough knowledge of military law, including all its latest developments, by careful analysis of the decisions of military appellate tribunals, the United States Court of Appeals for the Armed Forces, and pertinent decisions of other federal courts. The military judge should also be familiar with the LOW and, in particular, the GC III.
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B. Primary objective. This Benchbook is primarily designed to assist military judges of courts-martial concerning EPWs in the drafting of necessary instructions to courts. Because instructional requirements vary in each case, the pattern instructions are intended only as guides from which the actual instructions are to be drafted. In addition, this publication is designed to suggest workable solutions for many specific problems which may arise at a trial and to guide the military judge past certain pitfalls which might otherwise result in error. Specific examples of situations with which the military judge may have to deal are set forth, and in many instances actual language which may be employed in meeting these situations is suggested.

1–3. Necessity for tailoring.
No standardized set of instructions can cover every situation arising in courts-martial concerning EPWs. Special circumstances will invariably be presented, requiring instructions not dealt with in this Benchbook, or adaptation of one or more of these instructions to the facts of a case. These instructions are not intended to be a substitute for the ingenuity, resourcefulness, and research skill of the military judge. They will be of maximum value when used as a guide to carefully tailored instructions to be given to court members. The tailoring of instructions to the particular facts of a case contemplates the affirmative submission of the respective theories, both of the Government and of the accused, to the members of courts, with lucid guideposts, to the end that they may knowledgeably apply the law to the facts as they find them.

1–4. Elements of offenses.
A. Each pattern instruction contained in Chapter 3 bears the same number as the corresponding paragraph in Part IV, MCM. In addition, Chapter 3 contains subchapters 3-A, 3-B, 3-C, and 3-D, which include offenses under the LOW that are incorporated as customary international law. For most punitive offenses, if there are two or more methods by which the punitive article can be violated, the instructions are set forth separately, and are numbered with a –2, –3, –4, and so forth. Each instruction includes the form specification, which may be slightly different from the MCM form specification; the elements of the offense; definitions of terms; and required or desirable supplementary instructions. In a trial by court-martial of EPWs, the court is not bound to apply any specified maximum punishment, and the military judge must instruct the court accordingly. Article 87, GC III. If an instruction includes a term having a special legal connotation (term of art), the term should be defined for the benefit of the court, and ordinarily appears in the “DEFINITIONS AND OTHER INSTRUCTIONS” section of each instruction. Each pattern instruction set out in Chapter 3 should be prefaced by the language found in Chapters 2 (2–5–9) or 8 (8–3–8), PREFATORY INSTRUCTIONS ON FINDINGS. In the body of the instructions, that is, the elements and definitions sections, language found in parentheses is ordinarily not required in each case, but may be in a particular case, depending on the pleadings, the facts, and the contentions of the parties. Language set forth in brackets denotes elements which are alternative means of committing an offense, or aggravating factors which are not required to be instructed upon in each case, unless pled in the specification. For example, Article 3-B-2-1 may be violated by killing or inflicting bodily harm on a person; thus, the form
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specification and elements for terrorism are found in one set of brackets, and those for destroying property are set forth in a second set of brackets.
B. Notes are used extensively throughout the instructions in Chapter 3. When an instruction follows a note in the “DEFINITIONS AND OTHER INSTRUCTIONS” section, that instruction should be given only if the subject matter of the note applies to the facts and circumstances of that case. Notes in other portions of Chapter 3 are intended to explain the applicability of the instruction generally, or to alert the trial judge to optional elements or unusual applications of the instruction.

1–5. Other Instructions.
A. When court members are to determine findings in a case involving a plea of not guilty, the military judge should instruct as to the elements of each offense charged and all lesser included offenses, any special or other defense in issue, and other supplementary matters, bearing in mind the need for tailoring such instructions to the facts of the case. These instructions should conclude with mandatory advice concerning the burden of proof, reasonable doubt, and presumption of innocence, and guidance concerning procedures to follow in deliberations and voting in closed session found in Chapter 2. When court members are to determine a sentence, instructions must be tailored to the law and evidence just as in the case of pre-findings advice.
B. Defenses. As in Chapter 3, instructional language in Chapter 5 and Subchapter 5-A which follows a note is to be given only when the note applies to the facts and circumstances of the offense.
(1)
Instructions in Chapter 5 cover general and special defenses that are applicable in a trial by court-martial of members of the U.S. armed forces. The defenses in Chapter 5 are also applicable in a trial by court-martial of EPWs for post-capture criminal offenses under the UCMJ. See Arts. 85 and 102.

(2)
Instructions in Subchapter 5-A are defenses under the LOW and may be applicable in a trial by general court-martial of EPWs for pre-capture criminal offenses under the LOW.

C.
Chapter 7 includes common evidentiary instructions. As in Chapter 3, instructional language which follows a note is to be given only when the note applies to the facts and circumstances of the offense.



1–6. References.
A. Paragraph numbers in Chapter 3 conform to the paragraph numbers in the MCM. Therefore, no MCM citations are listed at paragraph e, “Reference.” GC III citations, if applicable, are included at paragraph e, “Reference.” Absent other citations, paragraph e is omitted.
B. References:
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1.
     Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, reprinted in DEP’T OF THE ARMY PAMPHLET 27-1, TREATIES GOVERNING LAND WARFARE (1956) [hereinafter DA PAM 27-1]. See http://www.unhchr.ch/html/menu3/b/91.htm.

2.
    Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, reprinted in DA PAM 27-1.

3.
     Department of Defense Dictionary of Military and Associated Terms, Joint Publication 1­02, p. 422 (12 April 2001, as amended through 5 June 2003).




Chapter 2
 TRIAL PROCEDURE AND INSTRUCTIONS
 
This procedural guide modifies the Guide for General and Special Courts-Martial in Appendix 8, MCM. This guide is intended for use in any general or special court-martial case concerning an EPW to which a military judge (MJ) has been detailed in accordance with Article 26, UCMJ. In addition to serving as a procedural guide for contested and uncontested trials, this chapter provides the majority of standard, non-evidentiary instructions on findings and sentencing. The order in which the guide and instructions appear generally corresponds with the point in the trial when the particular wording or instruction is needed or is otherwise appropriate.
Section I Initial Session Through Arraignment
2–1. PROCEDURAL GUIDE FOR ARTICLE 39(a) SESSION
MJ: Please be seated. This Article 39(a) session is called to order.
NOTE: Use of an interpreter. The accused is entitled to the services of a competent interpreter, if necessary, in preparation for trial and at the trial. Art. 105, GC III. The military judge should proceed at a pace that allows the interpreter to translate the proceedings to the accused and to translate the accused’s responses back to the court. Frequent pauses for translation will thus be necessary. If the accused requires a translator in order to communicate with counsel, an interpreter must be designated a member of the defense team.
NOTE: The GC III and UCMJ do not indicate who selects the interpreter. Presumably, the prosecution assigns an interpreter, and the interpreter may be regarded as a
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member of the accused's defense team. Cf. Yamashita transcript, Vol. I, at 4 (The prosecution assigned an interpreter, but the accused requested his own personal interpreter because he did not understand the assigned interpreter. The tribunal kept the assigned interpreter, but also allowed the accused’s translator to be a part of the accused’s defense team to provide a personal translation to the accused.).
(TC: The accused in this proceeding is entitled to the services of a competent interpreter [because (he)(she) (is not a native English speaker) (state the reason, if any)]). The prosecution requests that the proceedings be translated from English to __________ (state accused’s native language) by __________ (state the name of the interpreter(s)).
MJ: The proceedings will be so translated. The interpreter(s) will now be sworn.
TC: Do you (swear) (affirm) that you will faithfully perform all the duties of interpreter in the case now
 in hearing (so help you God)?”
 
INT(S): (Respond.)
 
TC: This court-martial is convened by Court-Martial Convening Order Number ______, Headquarters ___________, dated ______, (as amended by Court-Martial Convening Order Number ______, same Headquarters, dated ______,) copies of which have been furnished the military judge, counsel, and the accused, (which is in a language that (he)(she) understands,) and which will be inserted at this point in the record.
NOTE: The military judge should examine the convening order(s) and any amendments for accuracy. IF A CAPITAL CASE, GO TO CHAPTER 8, TRIAL PROCEDURE AND INSTRUCTIONS FOR A CAPITAL CASE.
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NOTE: Article 105, GC III, entitles the accused to a copy of documents in the
language which he understands.
(TC: The following corrections are noted in the convening orders: ___________.)
NOTE: Only minor changes may be made at trial to the convening orders. Any correction that affects the identity of the individual concerned must be made by an amending or correcting order.
TC: The charges have been properly referred to this court for trial and were served on the accused (on ___________ (enter the date of service)), (on) ___________ (enter the name of the Protecting Power) (on ___________ (enter the date of service)), and (on) the prisoners’ representative on ______ (enter the date of service)). The prosecution is ready to proceed (with the arraignment) in the case of United States
v. ______ (state accused’s name and rank, if applicable).
NOTE: Protecting Power (PP). Generally, the PP would be designated pursuant to Article 8, GC III. Under certain circumstances (e.g., unwillingness to request or to accept a PP, or during a period of occupation), however, there may not be a PP and a substitute organization such as a humanitarian organization (e.g., International Committee of the Red Cross), may be used. See Art. 10, GC III. The military judge should be mindful of any specific guidance that the Department of Defense (DoD) or the Department of State (DoS) may issue regarding the PP and proceed accordingly.
NOTE: Detaining Power. Under the GC III, the DP is responsible for satisfying various procedural functions. However, the GC III does not indicate whether such functions may be delegated to the prosecution. The military judge should be mindful of any specific guidance that DoD or DoS may issue regarding the delegation of the DP’s functions and proceed accordingly.
NOTE: Charge sheet. EPW trials should use the same Charge Sheet (DD Form 458) used in trials of members of the U.S. armed forces. RCM 307. See Major Charles J. Baldree, War Crimes Trials: Procedural Due Process 29 (April 1967) (unpublished graduate course thesis, The Judge Advocate General’s School, U.S. Army) (on file with
U.S. Army Trial Judiciary).
NOTE: Date of service. The military judge must pay attention to the date of service. (When computing the days, do not count the day of service or day of trial).
a.
Unlike the MCM, the GC III does not explicitly provide for an EPW accused’s waiver of the service requirement. Cf. US v Garcia, 10 MJ 631, 633 (ACMR 1980) (date of service is not a bar to trial within the specified period, but merely provides a ground for the accused to secure a continuance); US v Callahan, 1990 CMR Lexis 1216.

b.
Article 104, GC III, states that the DP must “properly notify” the accused, the PP, and the prisoners’ representative that it has decided to institute judicial proceedings against the accused at least THREE weeks before the opening session of trial.  In this regard, the military judge should be mindful of any specific guidance that DoD or DoS may issue concerning the procedure for the DP to notify the PP and


proceed accordingly. Article 104 provides that the notification must contain the following:
(1)
EPW’s surname and first name, rank, army regimental, serial number, date of birth, and profession or trade, if any;

(2)
Place of internment or confinement;

(3)
Specification of the charge or charges on which the EPW is to be arraigned, giving the legal provisions applicable; and

(4)
Designation of the court which will try the case, likewise the date and


place fixed for the opening of the trial. A copy of the Staff Judge Advocate’s (SJA) pre-trial advice (as required by Article 34, UCMJ) (i.e., a written and signed statement advising: (1) whether each specification on the charge sheet alleges an offense under the UCMJ; (2) whether each allegation is warranted by the evidence indicated in the report of investigation, if any;(3) whether a court-martial would have jurisdiction over the accused and the offense(s); and (4) what action to be taken by the convening authority) may satisfy the notice requirement.
c. Unless the prosecution presents satisfactory evidence of timely receipt of the required notice by the accused, the Protecting Power, and the prisoners’ representative, the military judge must adjourn the trial (Art. 104, GC III) and report the matter to the convening authority.
TC: The accused and the following persons detailed to this court are present: ___________, Military Judge; ___________, Trial Counsel; (___________, Assistant Trial Counsel;) ((and) ___________, Defense Counsel) ((and) ___________, Assistant Defense Counsel) ((and) ___________, Civilian Defense Counsel) ((and) ___________ (state name of selected prisoner comrade), Defense Assistant)
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((and) ___________ (state name of selected advocate), (Assistant) (Associate) Defense Advocate). The members (and the following person(s) detailed to this court are absent: ___________.
NOTE: Security concerns may necessitate an alteration of the usual requirement of announcement in open court of the names of court members and the parties. An appellate exhibit containing their names may be substituted.
TC: ___________ has been detailed reporter for this court and (has been previously sworn) (will now be sworn).
NOTE: Court reporter responsibilities. When detailed, the reporter is responsible for recording the proceedings, for accounting for the parties to the trial, and for keeping a record of the hour and date of the opening and closing of each session whether a recess, adjournment, or otherwise, for insertion in the record.
NOTE: Oath for reporter. If the reporter was not previously sworn, the following oath, as appropriate, will be administered by the trial counsel:
“Do you (swear) (affirm) that you will faithfully perform all the duties of court reporter in the case now in hearing (so help you God)?”
TC: (I) (All members of the prosecution) have been detailed to this court-martial by ___________. (I am) (All members of the prosecution are) qualified and certified under Article 27(b) and sworn under Article 42(a), Uniform Code of Military Justice. (I have not) (No member of the prosecution has) acted in any manner which might tend to disqualify (me) (us) in this court-martial.
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NOTE: Oaths for counsel. When counsel for either side, including any advocate, associate or assistant, is not previously sworn, the following oath, as appropriate, will be administered by the military judge:
“Do you (swear) (affirm) that you will faithfully perform all the duties of [(trial) (assistant trial) counsel] [(associate) (assistant) defense (counsel) (advocate)] in the case now in hearing (so help you God)?”

2-1-1. RIGHTS OF THE ACCUSED
MJ: (addressing the accused) You have certain rights that are afforded to you under Article 105 of the Geneva Convention Relative to the Treatment of Prisoners of War.  For example, Article 105 provides you with certain rights regarding representation by counsel.  Has (state name of detaining power) advised you of these rights prior to this proceeding?
ACC: (Responds.)
NOTE: Article 105, GC III, states that the DP shall advise the accused of these rights, which are summarized in the following notes, “in due time” before trial. It does not, however, address the consequences if the DP fails to do so.  In that instance, the MJ may wish to consider granting a continuance.
MJ: I will (again) discuss these rights with you now.
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NOTE: Rights to counsel. See Articles 99 and 105, GC III.
a.
     Procedurally, the accused first has the right to the assistance of one of his prisoner comrades and to representation by a “qualified advocate or counsel” of his own choice. See Article, 105, GC III (requiring, ostensibly, that accused be represented and apparently giving him both the right to assistance by prisoner comrade AND representation by qualified counsel).

b.
If the accused fails to select a qualified advocate or counsel, then the Protecting Power shall appoint an “advocate or counsel” to represent the accused.

c.
If the Protecting Power does not appoint an advocate or counsel to represent the accused, then the Detaining Power shall appoint a “competent advocate or counsel” to represent the accused.

d.
The advocate or counsel selected to represent the accused shall have at least two weeks before the opening of trial to prepare for the defense of the accused.


NOTE: “Qualified” advocate or counsel. Although the language of Article 105, GC III, uses different terms with reference to “advocate or counsel” (e.g., (1) the accused is entitled to representation by a “qualified” advocate or counsel; (2) the PP shall select an advocate or counsel; and (3) the DP shall appoint a “competent” advocate or counsel), the designated advocate or counsel should nonetheless be “qualified”. Such an interpretation would be consistent with the tenor of Article 99, GC III (“No prisoner of war may be convicted without having had an opportunity to present his defense and the assistance of a qualified advocate or counsel”).  The GC III, however, fails to define the term “qualified.” On the one hand, these terms may have the same meaning in different jurisdictions. On the other hand, these terms may distinguish between a person with a license to practice law and a person without a license to practice law, but
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familiar with the legal process. In the court-martial context, Article 38(b), UCMJ, permits the accused to be represented by civilian or military counsel. Notwithstanding, RCM 502(d)(3) requires that the civilian counsel be “(A) a member of the bar of a Federal court or of the bar of the highest court of a State; or (B) If not a member of such a bar, a lawyer who is authorized by a recognized licensing authority to practice law and is found by the military judge to be qualified to represent the accused upon a showing to the satisfaction of the military judge that the counsel has appropriate training and familiarity with the general principles of criminal law which apply in a court-martial.” If the purported “advocate or counsel” fails to satisfy this requirement, he may not be permitted to represent an accused in a court-martial. See Soriano v. Hosken, 9 MJ 221, 222 (1980) (citing US v. Nichols, 8 USCMA 119, 125 (1957))(acknowledging that a member of a local bar in a foreign country may be qualified to represent a military accused depending on his or her ability to demonstrate a fair standard of professional competence). Apart from failing to define “qualified,” the GC III likewise does not address who would determine whether the advocate or counsel is qualified in the first instance.  Finally, it should be noted that security grounds may justify not allowing a "selected” advocate/counsel to participate if other qualified advocates or /counsel are available to assist the accused.   
NOTE: Pro se representation. Unlike the MCM, the GC III does not contemplate pro se representation. Cf. US v. Moussaoui, 2002 US Dist. LEXIS 11135 (14 June 2002) (defendant’s motion to proceed pro se granted).
NOTE: Change in representation. The GC III does not address whether the accused may change representation during the trial, e.g., accused changes his mind later that
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he wants the assistance/representation of his own prisoner comrade, advocate, or counsel; accused does not want the advocate or counsel selected/appointed by the Protecting Power or the Detaining Power. Because the accused may not proceed pro se, it appears that he must accept the selected/appointed advocate/counsel. However, the accused may be able to request a replacement advocate/counsel for good cause. This issue should be resolved by the Detaining Power before trial, or if this occurs at trial and for good cause, the court may grant a delay for the accused to obtain new representation.
MJ: If you do not ___________, you have the right to select one of your prisoner comrades to assist you in your defense. You also have the right to select a qualified advocate or counsel of your choice to represent you. He/She would be provided to you at no expense to you.
NOTE: The GC III does not discuss costs of “representation”. Reasoning, however, that EPWs would have the same procedural rights under a GCM, it would seem that EPWs would only receive free military representation and incur their own costs for civilian (or non-military) representation. Notwithstanding, the GC III appears to place the financial burden on the DP for any representation. In contrast, that would be giving EPWs more rights than US military who bear their own costs for non-military representation. However, under 10 USC § 1037, US may pay counsel costs of U.S. military before foreign tribunals. Thus, arguably the same process for EPWs.
If you do not select a qualified advocate or counsel of your choice, ___________ (enter the name of the Protecting Power) shall find a qualified advocate or counsel to represent you at no expense to you. ___________ (enter the name of the Protecting Power) shall have at least one week at its
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disposal to find a qualified advocate or counsel to represent you. __________ (enter the name of the Protecting Power) may select a qualified advocate or counsel from a list of qualified persons submitted by ___________ (enter the name of the Detaining Power), if so requested by __________ (enter the name of the Protecting Power).
If ___________ (enter the name of the Protecting Power) does not appoint a qualified advocate or counsel to represent you within one week of its notification to appoint a qualified advocate or counsel, then ___________ (enter the name of the Detaining Power) shall detail a military defense counsel to represent you at no expense to you.
(___________ (state name of the appointed advocate or counsel) has been appointed to represent you.)
NOTE: The MCM affords the accused the right to select a different military lawyer. The GC III, however, does not address whether an EPW accused is able to request a different advocate or counsel who was appointed by the PP or DP. Arguably, the accused should be able to request a different advocate or counsel for good cause. Presumably, this issue should be resolved by the DP before trial begins, or if this occurs at trial and the accused presents good cause, the court may grant a delay for the accused to obtain a different advocate or counsel. The military judge should be mindful of any specific guidance that DoD or DoS may issue regarding a request for a different advocate or counsel and proceed accordingly.
MJ: You also have the right to request a different military lawyer to represent you. If the person you request is reasonably available, he/she would be appointed to represent you free of charge.
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If your request for this other military lawyer were granted, however, you would not have the right to keep the services of your detailed defense counsel because you are entitled only to one military lawyer. You may ask his/her superiors to let you keep your detailed counsel, but your request would not have to be granted.
In addition, you have the right to be represented by a civilian lawyer. A civilian lawyer would have to be provided by you at (no expense to ___________ (enter the name of the Detaining Power). If you are represented by a civilian lawyer, you can also keep your military lawyer on the case to assist your civilian lawyer, or you could excuse your military lawyer and be represented only by your civilian lawyer.
Do you understand your rights to counsel?
ACC: (Responds.)
MJ: Do you have any questions about your rights to counsel?
ACC: (Responds.)
MJ: In addition, the qualified advocate or counsel selected to represent you shall have at least two weeks before the opening of trial to prepare for trial. He/She shall also have available the necessary facilities to prepare your defense.
NOTE: Article 105, GC III, provides that the accused’s advocate or counsel is entitled to the necessary facilities to prepare the accused’s defense, to freely visit the accused and interview him in private, and to confer with witnesses for the defense including EPWs. See generally Zacarias Moussaoui case, U.S. District Court for the Eastern
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District of Virginia, Alexandria Division, Criminal Case No. 01-455-A (involving several pro se motions regarding defendant’s rights to adequately prepare his defense, e.g., defendant’s motion requesting access to witnesses held at Guantanamo Bay granted, but the government refused to follow the Court’s order). Cf. Military Commission Order No. 1 (provides limited trial procedures to the accused).
MJ: You are also entitled to the services of a competent interpreter in preparation for trial and at the trial.
Lastly, representatives of ___________ (enter the name of the Protecting Power) are entitled to attend the trial unless, in the interest of security, the sessions are to be closed. If the sessions are to be closed, ___________ (enter the name of the Detaining Power) shall notify ___________ (enter the name of the Protecting Power) accordingly that the sessions are to be held in camera.
NOTE: Article 74, GCC. See Instruction 7-23, “Closed Trial Session”, Impermissible Inference of Guilt, and RCM 804 and MRE 505 and 506.
MJ: Do you understand these rights?
ACC: (Responds.)
MJ: By whom will you be represented?
ACC: (Responds.)
MJ: By whom was your (advocate) (counsel) selected or appointed?
ACC: (Responds.)
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NOTE: Appointment of a qualified advocate or counsel by the Protecting Power. The military judge must pay attention to the date the Protecting Power appoints a qualified advocate or counsel. If less than ONE week has elapsed from notification to the Protecting Power to appoint a qualified advocate or counsel to the date of appointment, the military judge must inquire. (When computing the days, do not count the day of service or day of trial.) If less than ONE week has elapsed, the military judge must grant a continuance.
NOTE: Opportunity to prepare for trial. The military judge must pay attention to the time period the advocate or counsel has to prepare for trial. If less than TWO weeks have elapsed from the time of appointment, the military judge must inquire. (When computing the days, do not count the day of service or day of trial.) If less than TWO weeks has elapsed, the military judge must grant a continuance. Art. 105, GC III.
MJ: When was the date of your selection or appointment?
DC: (Responds.)
MJ: Do you wish to be represented by (him/her) (them) alone?
ACC: (Responds.)
NOTE: Conflict of interest. The military judge must be aware of any possible conflict of interest by counsel and, if a conflict exists, the military judge must obtain a waiver from the accused or order new counsel appointed for the accused. See applicable inquiry at INSTRUCTION 2-7-3, WAIVER OF CONFLICT-FREE COUNSEL.
MJ: Defense counsel will announce by whom (he/she) (they) (was) (were) detailed and (his/her) (their) qualifications.
DC: (I) (All detailed members of the defense) have been detailed to this court-martial by ___________. (I am) (All detailed members of the defense are) qualified and certified under Article 27(b) and sworn under Article 42(a), Uniform Code of Military Justice. (I have not) (No member of the defense has) acted in any manner which might tend to disqualify (me) (us) in this court-martial.
Civilian DC: I am an attorney and licensed to practice law in the (state(s)) (country) of ___________. (I am a member in good standing of the (___________) bar(s)). I have not acted in any manner which might tend to disqualify me in this court-martial.
(OATH FOR CIVILIAN COUNSEL:) MJ: Do you, ___________, (swear) (affirm)
that you will faithfully perform the duties of individual defense counsel in the case
now in hearing (so help you God)?
CDC: (Responds.)
MJ: I have been properly certified and sworn, and detailed (myself) (by ________________) to this court-martial. Counsel for both sides appear to have the requisite qualifications, and all personnel required to be sworn have been sworn. Trial counsel will announce the general nature of the charge(s).
NOTE: Charges should allege nationality of accused, victim, accused’s position, and that accused “violated the Law of Armed Conflict” or other codal provisions, if applicable. RCM 307(c)(2), Discussion, and 307(d).
TC: The general nature of the charge(s) in this case is ___________. The charge(s) (was) (were) preferred by ___________, (and) forwarded with recommendations as to disposition by ___________; (and investigated by ___________). (The Article 32 investigation was waived.)
NOTE: If the accused waived the Article 32 investigation, the military judge should inquire to ensure that it was a knowing and voluntary waiver. The script at INSTRUCTION 2-7-8, PRETRIAL AGREEMENT: ARTICLE 32 WAIVER, may be used, but, if the waiver was not IAW a pretrial agreement the first sentence of the first question should be omitted. If the waiver was part of a pre-trial agreement, the military judge can defer this inquiry until discussion of the pretrial agreement, INSTRUCTION 2-2-6, PRETRIAL AGREEMENT (JUDGE ALONE).
TC: Your Honor, are you aware of any matter which might be a ground for challenge against you?
MJ: (I am not.) (___________.) Does either side desire to question or to challenge me?
TC/DC: (Responds.)

2–1–2. FORUM RIGHTS
MJ: ___________, you have a right to be tried by a court consisting of at least (three) (five) officer members (that is, a court composed of commissioned and/or warrant officers).
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(IF ACCUSED IS ENLISTED:) MJ: Also, if you request it, you would be tried by a court consisting of at least one-third enlisted members.
You are also advised that no member of the court would be junior in rank to you. Do you understand what I have said so far?
ACC: (Responds.)
MJ: Now, if you are tried by court members, the members will vote by secret, written ballot and two-thirds of the members must agree before you could be found guilty of any offense. If you were found guilty, then two-thirds must also agree in voting on a sentence (and if that sentence included confinement for more than 10 years, then three-fourths would have to agree).
NOTE: IF CAPITAL CASE, use procedural guide in Chapter 8, TRIAL
PROCEDURE AND INSTRUCTIONS FOR A CAPITAL CASE. In a capital case,
there is no right to request trial by judge alone.
(IN NON-CAPITAL CASES:) MJ: You also have the right to request a trial by military judge alone, and if approved there will be no court members and the judge alone will decide whether you are guilty or not guilty, and if found guilty, the judge alone will determine your sentence. Do you understand the difference between trial before members and trial before military judge alone?
ACC: (Responds.)
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MJ: Do you understand the choices that you have?
ACC: (Responds.)
MJ: By what type of court do you wish to be tried?
ACC: (Responds.)
NOTE: If accused elects enlisted court members and the request is written, mark it as an appellate exhibit and GO TO INSTRUCTION 2-1-3, ARRAIGNMENT. If accused elects officer members, GO TO INSTRUCTION 2-1-3, ARRAIGNMENT. If accused elects trial by judge alone, continue below:
MJ: Is there a written request for trial by military judge alone?
DC: There is (not).
MJ: Does the accused have a copy in front of (him)(her)?
DC: (Responds.)
MJ: ___________, Appellate Exhibit ___, is a request for trial by military judge alone. Is this your signature on this exhibit?
ACC: (Responds.)
MJ: At the time you signed this request, did you know I would be the military judge in your case?
ACC: (Responds.)
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MJ: Is your request a voluntary one? By that, I mean are you making this request of your own free will?
ACC: (Responds.)
MJ: If I approve your request for trial by me alone, you give up your right to be tried by a court composed of members. Do you understand that?
ACC: (Responds.)
MJ: Do you still wish to be tried by me alone?
ACC: (Responds.)
MJ: Your request is approved.
NOTE: If the military judge approves the request, the military judge should indicate so by signing and dating the written request, if one exists. If the military judge disapproves the request, the military judge should develop the facts surrounding the denial, require argument from counsel, and state reasons for denying the request.
MJ: The court is assembled.

2–1–3. ARRAIGNMENT
MJ: The accused will now be arraigned.
TC: All parties to the trial have been furnished with a copy of the charge(s). Does the accused want (it) (them) read?
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NOTE: Article 105, GC III, entitles accused to a copy of documents in the language which he understands.
DC: The accused (waives the reading of the charge(s)) (wants the charge(s) read).
MJ: (The reading may be omitted.) (Trial counsel will read the charge(s).)
TC: The charge(s) (is) (are) signed by ___________, a person subject to the code, as accuser; (is) (are) properly sworn to before a commissioned officer of the armed forces authorized to administer oaths; and (is) (are) properly referred to this court for trial by ___________, the Convening Authority.
MJ: Accused and Defense Counsel please rise.
ACC/DC: (Complies)
MJ: (___) (state rank of accused, if applicable) ___________, how do you plead? Before receiving your plea, I advise you that any motions to dismiss or to grant other appropriate relief should be made at this time. Your defense counsel will speak for you.
DC: The defense (has (no) (the following) motions.) (requests to defer motions at this time.)
NOTE: Whenever factual issues are involved in ruling on a motion, the military judge shall state essential findings of fact. If the trial counsel gives notice that the government desires a continuance to file an appeal under Article 62 (see RCM 908), the military judge should note the time on the record so that the 72 hour period may be accurately calculated.
NOTE: The military judge must ensure that pleas are entered after all motions are litigated.
DC: The accused, ___________, pleads as follows:
NOTE: IF GUILTY PLEA, GO TO INSTRUCTION 2-2-1, GUILTY PLEA INTRODUCTION. IF NOT GUILTY (JUDGE ALONE), GO TO SECTION III, JUDGE ALONE (CONTESTED FINDINGS). IF NOT GUILTY (MEMBERS), mark the Flyer as an Appellate Exhibit; ensure each court member packet contains copies of the flyer, convening orders, note paper, and witness question forms; then GO TO SECTION V, COURT MEMBERS (CONTESTED).
Section II Guilty Plea Inquiry
2–2–1. GUILTY PLEA INTRODUCTION
MJ: ___________, your counsel has entered a plea of guilty for you to ((the) (all) (several) charge(s) and specification(s)) (___________). Your plea of guilty will not be accepted unless you understand its meaning and effect. I am going to discuss your plea of guilty with you. You may wish to consult with your defense counsel prior to answering any of my questions. If at any time you have questions, feel free to ask them.
A plea of guilty is equivalent to a conviction and is the strongest form of proof known to the law. On your plea alone, and without receiving any evidence, this court can find you guilty of the offense(s) to which you have pled guilty. Your plea will not be accepted unless you realize that, by your plea, you admit every act or omission, and element of the offense(s) to which you have pled guilty, and that you are pleading guilty because you actually are, in fact, guilty. If you do not believe that you are guilty, then you should not for any reason plead guilty. Do you understand what I have said so far?
ACC: (Responds.)
MJ: By your plea of guilty, you give up three important rights, but you give up these rights solely with respect to the offenses to which you have pled guilty.
First, the right against self-incrimination; that is, the right to say nothing at all.
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Second, the right to a trial of the facts by this court; that is, your right to have this court-martial decide whether or not you are guilty based upon evidence the prosecution would present, and on any evidence you may introduce.
Third, the right to be confronted by and to cross-examine any witness called against you.
Do you have any questions about any of these rights?
ACC: (Responds.)
MJ: Do you understand that by pleading guilty you no longer have these rights?
ACC: (Responds.)
MJ: If you continue with your guilty plea, you will be placed under oath and I will question you to determine whether you are, in fact, guilty. Anything you tell me may be used against you in the sentencing portion of the trial. Do you understand this?
ACC: (Responds.)
MJ: If you tell me anything that is untrue, your statements may be used against you later for charges of perjury or making false statements. Do you understand this?
ACC: (Responds.)
(MJ: Your plea of guilty to a lesser included offense may also be used to establish certain elements of the charged offense, if the government decides to proceed on the charged offense. Do you understand this?
ACC: (Responds.)
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MJ: Trial Counsel, please place the accused under oath.
TC: ___________, please stand and face me.  
ACC: (Complies.)
TC: Do you (swear) (affirm) that the statements you are about to make shall be the truth, the whole
 
truth, and nothing but the truth (so help you God)?
 ACC: (Responds.)
 
MJ: Is there a stipulation of fact?
TC: (Yes) (No), Your Honor.
NOTE: If no stipulation exists, GO TO INSTRUCTION 2-2-3, GUILTY PLEA FACTUAL BASIS. If a stipulation exists, continue below.


2–2–2. STIPULATION OF FACT INQUIRY
 
MJ: Please have the stipulation marked as a Prosecution Exhibit, present it to me, and make sure the accused has a copy.
TC: (Complies.)
MJ: ___________ (state name of accused), I have before me Prosecution Exhibit ___ for Identification, a stipulation of fact. Did you sign this stipulation?
ACC: (Responds.)
MJ: Did you read this document thoroughly before you signed it?
ACC: (Responds.)
NOTE: If the rules permit an “advocate” to present the defense, the military judge may
use an alternative phrase such as “Do both sides….”
MJ: Do both counsel agree to the stipulation and that your signatures appear on the document?
TC/DC: (Responds.)
MJ: ___________, a stipulation of fact is an agreement among the trial counsel, your defense counsel, and you that the contents of the stipulation are true, and, if entered into evidence, are uncontradicted facts in this case. No one can be forced to enter into a stipulation, so you should enter into it only if you truly want to do so. Do you understand this?
ACC: (Responds.)
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MJ: Are you voluntarily entering into this stipulation because you believe it is in your best interest to do so?
ACC: (Responds.)
MJ: If I admit this stipulation into evidence it will be used in two ways.
First, I will use it to determine if you are, in fact, guilty of the offense(s) to which you have pled guilty.
(IF JUDGE ALONE TRIAL): Second, I will use it to determine an appropriate sentence for you.
(IF MEMBERS TRIAL): Second, the trial counsel may read it to the court members and they will have it with them when they decide upon your sentence.
Do you understand and agree to these uses of the stipulation?
ACC: (Responds.)
MJ: Do counsel also agree to these uses?
TC/DC: (Responds.)
MJ: ___________, a stipulation of fact ordinarily cannot be contradicted. If it should be contradicted after I have accepted your guilty plea, I will reopen this inquiry. You should, therefore, let me know if there is anything whatsoever in this stipulation that you disagree with or feel is untrue. Do you understand that?
ACC: (Responds.)
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MJ: At this time, I want you to read your copy of the stipulation silently to yourself as I read it to myself.
NOTE: The military judge should read the stipulation and be alert to resolve inconsistencies between what is stated in the stipulation and what the accused says during the providence inquiry.
MJ: Have you finished reading it?
ACC: (Responds.)
MJ: ___________, is everything in the stipulation true?
ACC: (Responds.)
MJ: Is there anything in the stipulation that you do not wish to admit is true?
ACC: (Responds.)
MJ: Do you agree under oath that the matters contained in the stipulation are true and correct to the best of your knowledge and belief?
ACC: (Responds.)
MJ: Defense Counsel, do you have any objections to Prosecution Exhibit ___ for Identification?
DC: (Responds.)
MJ: Prosecution Exhibit ___ for Identification is admitted into evidence subject to my acceptance of the accused’s guilty plea.
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2–2–3. GUILTY PLEA FACTUAL BASIS
 
MJ: ___________, I am going to explain the elements of the offense(s) to which you have pled guilty. By “elements,” I mean those facts which the prosecution would have to prove beyond a reasonable doubt before you could be found guilty if you had pled not guilty. When I state each element, ask yourself two things: First, is the element true, and, second, whether you wish to admit that it is true. After I list the elements for you, be prepared to talk to me about the facts regarding the offense(s). Do you have a copy of the charge sheet(s) in front of you?
ACC: (Responds.)
NOTE: For each specification to which the accused pled guilty, proceed as follows:
MJ: Please look at (the) Specification (___) of (the) Charge (___), (in violation of Article ______ of the Uniform Code of Military Justice) (in violation of the Law of Armed Conflict, specifically ___________ (state the article and Convention)). The elements of the offense of ___________ (state the offense) are:
NOTE: List elements and explain appropriate definitions using applicable language
from Chapter 3.
MJ: Do you understand the elements (and definitions) as I have read them to you?
ACC: (Responds.)
MJ: Do you have any questions about any of them?
ACC: (Responds.)
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MJ: Do you understand that your plea of guilty admits that these elements accurately describe what you did?
ACC: (Responds.)
MJ: Do you believe and admit that the elements (and definitions, taken together,) correctly describe what you did?
ACC: (Responds.)
MJ: At this time, I want you to tell me why you are guilty of the offense listed in (the) specification (___) of (the) charge (___). Tell me what happened.
ACC: (Responds.)
NOTE: The military judge must elicit the facts leading to the guilty plea by conducting a direct and personal examination of the accused as to the circumstances of the alleged offense(s). The military judge must do more than elicit legal conclusions. The military judge’s questions should be aimed at developing the accused’s version of what happened in the accused’s own words, and determining if the acts or omissions encompass each and every element of the offense(s) to which the guilty plea relates. The military judge must be alert to the existence of any inconsistencies or possible defenses raised by the stipulation or the accused’s testimony and, if they arise, the military judge must discuss them thoroughly with the accused. The military judge must resolve them or declare the plea improvident to the applicable specification(s).
NOTE: After obtaining the factual basis from the accused, the military judge should secure the accused’s specific admission as to each element of the offense, e.g., as follows:
MJ: Do you admit that you (killed ______) (______)?
ACC: (Responds.)
MJ: Do you admit that you (intended to kill ______) (______)?
ACC: (Responds.)
MJ: Do you admit that you (knew or should have known that ______ was a person protected under the law of armed conflict) (______)?
ACC: (Responds.)
MJ: And that (the killing took place in the context of and was associated with armed conflict) (______)?
ACC: (Responds.)
NOTE: After covering all offenses to whic

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