Showing papers in "Maine Law Review in 1970"

The Civilianization of Military Law

Abstract: more than something that would be desired when an enlisted man is facing trial before a court martial. 197 In 1964 the Court of Military Appeals in United States v. Crawford,108 approved the practice of selecting only senior noncommissioned officers as court members, and rejected the argument that statutory intent and constitutional standards were thereby frustrated. The court did add that the convening authority may not deliberately exclude any group of qualified jurors on \"irrelevant, irrational, or prohibited grounds.\" 100 Thus, under the UCMJ the right to a court composed of at least one-third enlisted men still remains in practice only a right to a court composed of one-third noncommissioned officers selected by the commander, and there are virtually no limitations on the convening authority's method of selection of both enlisted men and officers for court-martial. 5. Judicial Functions-The UCMJ provided that every general court-martial would have a law officer appointed by the convening authority (usually from the office of his staff judge advocate) who would not be a member of the court200 (law officers would not be provided in special courts where the president, who was not required to be a lawyer, would carry out those functions). The law officer would have to be a member of the bar or highest court of a state and certified as legally qualified by the Judge Advocate General. He would instruct the court as to the elements of the offense, the presumption of innocence, and the burden of proof, and would rule on interlocutory questions of law. However, the members of the court would continue to determine, by secret vote, challenges for cause against a member, and if any member objected to the law officer's rulings on a motion for finding of not guilty or on a question of accused's sanity, the court would make the determination. The senior officer, called the president, would continue to preside at the trial and carry out many administrative and judicial functions. For example, he would set the time and place of trial and uniform to be worn, conduct the trial and preserve order, administer oaths to counsel, recess or adjourn the court,20' preside over closed sessions, speak for the court in announcing findings and sentence and in conferring with the law officer. Likewise, the prosecutor, called the trial counsel, would continue to perform administrative duties, such as notifying court members and personnel as to the date, time, and place of trial, preparing the court room for trial, insuring that members and personnel were properly cared for, opening the trial and administering certain oaths. Reformers objected that the law officer, although he would perform 197 94 CONG. REC. 161 (1947) (remarks of Congressman Kilday). 198 15 U.S.C.M.A. 31, 35 C.M.R. 3 (1964). 199 15 U.S.C.M.A. at 40, 35 C.M.R. at 12 (1964). 200 10 U.S.C. § 826 (1964) (art. 26 of the UCMJ). 201 MANUAL fs 40 (1951).