Witness in a Court-Martial?
Did you receive a phone call from a paralegal or attorney informing you that you are identified as a witness in a court-martial?
Believe it or not, this is a fairly common occurrence, and many people are often caught off guard when receiving a call like this.
Understanding Your Role
Witnesses testify in two separate phases of a military court-martial. The first phase, which determines whether there will be a finding of guilt or innocence is known as the “merits” phase of the trial.
Witnesses who testify during the merits phase of the court-martial have relevant and necessary evidence of observations, knowledge, or statements that relate to whether or not one or more of the allegations can be proved beyond a reasonable doubt. The military also allows the use of character witnesses about relevant character traits during the merits phase of a trial. For example, if the UCMJ violation charged is a larceny (theft), a relevant character trait would be the accused person’s character for following the law. If the military accused takes the stand in his own defense, then another relevant character trait would be the accused person’s character for truthfulness.
Witnesses are also called upon to give testimony during the phase after the “merits”, which is called the “pre-sentencing phase.” This means that the witness would be called to provide if and only if there is at least one finding of guilt during the “merits phase” of the court-martial.
Pre-sentencing occurs almost immediately after any determination of guilt. Sometimes there is a brief 15 minute recess between phases, and sometimes if the verdict (findings) came in late in the day, that session may be scheduled for the next morning.
During pre-sentencing, the prosecution calls witnesses to provide evidence in “aggravation” about the UCMJ crimes for which military accused (defendant) was found guilty.
The defense calls witnesses to give information about the accused’s duty performance, military service record, childhood history, character, and rehabilitative potential.
Why Witnesses in a Court-Martial Are Required for a Fair Trial
Whether you are identified as a fact witness surrounding the allegations or a character witness for potential pre-sentencing for the military accused (defendant), know that both parties – Government / Prosecution and Defense – are entitled to a fair trial.
Are You Required to Answer Questions in Advance of Trial?
Rule for Court Martial 701(e) states “Each party shall have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence…. No party may unreasonably impede the access of another party to a witness or evidence.”
Military witnesses can be ordered to submit to a pretrial interview.
Civilian witnesses, in most cases, cannot be required to submit to a pretrial interview. However, refusing may delay the trial or result in a witness appearing to be concealing the truth by not being forthcoming.
Often when Defense calls a Government witness, the witness was not previously notified of their role or required presence at the trial. If you are identified as a Government witness and have questions regarding your involvement in the trial, reach out to the Government counsel (JAG) or Government paralegal.
The Spirit of Cooperation
It is in the interest of justice that all witnesses demonstrate a spirit of cooperation. Military courts-martial take pride in not displaying “trial by ambush.” It is perfectly normal and expected that both parties (the Government and the Defense) will ask you questions as to what you expect to testify about. Again, both parties are allowed to know this information, so it is important that you provide as much as possible. If something comes to mind that you did not previously mention during an interview, be sure to let each party know. The information that you provide assists each side to prepare their case for the trial and helps to ensure a fair trial to both sides.
Presence at Trial / Travel
If you will be travelling to the trial either as a Government or Defense witness, the Government is responsible to pay and coordinate your travel through the Defense Travel System (DTS). Any questions regarding travel arrangements should be directed to the Government witness liaison or the Government paralegal.
Do I have a Choice Who I Testify For?
The short answer is no. Generally speaking, your participation in a court-martial depends on what you have observed and experienced, not on your willingness to do so.
That said, the Defense in particular will seldom want to call a witness during pre-sentencing who is outright antagonistic to the military accused. If you have concerns, please address them with the attorney for the side who is calling you as a witness. But please understand that once you are identified as a witness, your role is required for a fair trial.
Civilian Witnesses Can Be Compelled – Subpoenas and Writs of Attachment
Civilian witnesses (and often even military witnesses) will receive a subpoena requiring their presence at the trial. This is an administrative process conducted by the Government to ensure the witness’ availability. Often times a civilian’s workplace will require a subpoena to excuse them from work for the required timeframe. Remember that a subpoena is a legal document and can compel your attendance. Failing to abide by a subpoena can result in a Federal warrant of attachment. A Federal warrant of attachment gives authority to Federal Marshalls to find you, arrest you, and forcibly take you to the location of the trial.
Military Witnesses Can Be Compelled – Lawful Military Order
If a service member refuses to testify, they can be ordered to do so. This constitutes a lawful order by a military superior, and failure to obey is its own military offense under the UCMJ.
If a service member was involved in the alleged incident or has concerns that their testimony can incriminate them about a UCMJ offense, the military witness may receive what is known as a grant of testimonial immunity. Testimonial immunity is not an easy or simple legal concept. Anyone who is concerned about implicating themselves for a violation of state, Federal, or UCMJ law should contact legal counsel.
Your Piece in the Puzzle
Often, witnesses complain that they do not understand why their testimony matters. They often feel like the small piece of information they possess should not be significant enough to demand their time and attention, especially if their participation involves cross-country travel or even travel from across the world.
Please try to understand that it would be inappropriate for any lawyer to explain the significance of a witness’ testimony in the broader context of the trial. To do so could constitute improper influence of the potential testimony.
The Court-Martial Process – What Witnesses Can Expect
During the trial, the Government will present their case first and then the Defense, if the Defense has any case to present during the merits phase. The Defense is not required to put on any evidence, and the burden remains at all times on the Government to prove the guilt of the military accused.
Because the burden is on the Government and they are required to present their case first, witnesses who the Government will call will testify earlier in the process than Defense witnesses. Expect to be on standby until you are required for your testimony. Once you are called to report to the trial, be prepared to wait as other witness testimony may go longer than expected. Bring a snack, some reading material, and drink! You may also want to bring a charging cord for your cell phone because you do not know how long you will be in the waiting room.
Potential for Late Night Hours
Courts-martial do not normally keep 9am to 5pm business hours. Sometimes cases go well into the evening hours. If you have childcare issues or other responsibilities that require you to leave the court facility before court recesses for the night, ensure that you communicate this to the Government paralegal and witness liaison. Even if you are a Defense witness, the Government is responsible for ensuring that they “produce” you as a witness. Production includes getting you onto the stand when you are called as a witness.
When You Are Called to Testify
When you are finally called to testify, the bailiff will get you from the waiting area and escort you to the courtroom where you will proceed to the witness stand. Do not sit down until told to do so. Once you are standing next to or in the witness stand, whether you are a Government or Defense witness, the Government counsel will swear (or affirm) you in and ask you general information, such as your name, rank, occupation, etc.
Ordinarily, you will not be able to testify from any documents, so please leave all documents in the witness waiting area. No cell phones are permitted to be present in the courtroom, so if you are carrying a purse, please ensure that your phone is turned off completely. The best course of action is to leave your belongings in the witness waiting area with a trusted person.
While raising your right hand, expect the Government counsel to say the following oath to you:
“Do you swear (or affirm) the evidence you shall give in the case now in hearing will be the truth, the whole truth, and nothing but the truth, (So help you God)?
After you are sworn in, the Government counsel will tell you to please be seated. Then the Government counsel is responsible for placing your name and identifying information on the record. This includes your first name and last name. In Navy, Marine Corps, and Coast Guard cases, the prosecutor will also ask you to spell your last name for the record.
If you are a military witness, they will ask you for your current unit of assignment. If you are a civilian witness, you will need to provide your city and state of residence. Sometimes the Government counsel asks the address information in a confusing way. Even if you think they are asking you to provide your full address, only state your city and state of residence. This is for privacy issues, and you are only required to provide the city and state of residence.
After you have been sworn in and have provided basic introduction information, the side for which you are a witness for will start asking you questions. This is known as direct examination. When finished, the other side will ask you questions regarding what you just testified about. This is known as cross examination. After cross-examination, the party who originally called you is able to clarify anything elicited during cross-examination. This process is known as redirect examination. In some courts, the military judge will allow the counsel to ask more cross-examination and more redirect.
Panel Member Questions
At this point, if there are members (or a jury), they will be able to ask questions of you as well. If they do, they are not permitted to speak their questions aloud to you. Instead, the court-martial process requires them to write out the question or questions on a piece of paper designated for their questions. Then, a bailiff will pass the question to the Government and then to the Defense to review. Each side has a chance to annotate on the paper if there is an objection to any question. Afterward, the bailiff will hand the question sheet to the court reporter to have it marked as the next Appellate Exhibit. Then the court reporter provides the paper to the military judge.
While this process is happening, typically the witness is to remain quiet and patient on the stand. If there is a matter that needs to be addressed outside the hearing of the panel (jury), the judge may excuse the members. If this occurs, please stand to show courtesy to the members as they file out. This requirement to stand would be announced by the bailiff calling “All rise.”
Once the panel departs, if they are required to depart, the judge may want to ask you the questions to hear your potential answer before you are being asked in the jury’s presence.
It may even be that the judge asks you to return to the witness waiting room while the parties sort out any issues with the proposed questions.
If the questions by the members are allowed, the judge will read the question to you as the witness. We encourage witnesses to please remember to turn to the judge when receiving the question but then to look back at the members when responding to the question as it was their question.
During your testimony, it may be that the Government counsel or the Defense counsel has an objection to a question being asked of you or even to your response.
If you hear the word “Objection”, please stop speaking, even if you are mid-sentence. Please stand by for further instruction.
Do not proceed until the judge makes a ruling on the objection. If the objection is “sustained”, this means that you will not answer the question that was just asked of you. If the objection is “overruled”, this means that you are allowed to answer the question. If you are unable to recall the question previously asked and objected to, you are free to ask the counsel to repeat the question for you.
Excusal – Temporary or Permanent
Once you are finished with your testimony, the judge will ask each party if you should be temporarily or permanently excused.
When a witness is typically temporarily excused, this means that there may be a need for the witness to be called in a later stage of the proceeding for additional testimony. Witnesses who are temporarily excused will receive an admonishment to the effect that “so long as this case continues, do not discuss your testimony with anyone, other than the party who originally called you as a witness.” You will then be permitted to return to the witness waiting area or you may be instructed to ensure the Government paralegal has your cell phone number and to await a phone call about when to return if you are needed.
If you have any questions about the nature of this excusal, please direct any questions to Government paralegal or witness liaison.
If a witness is permanently excused, this means that the witness can return to their duties, to their home, or to the gallery (the public viewing area of the trial) to watch as a spectator.
Anyone called upon to testify in a court-martial plays a vital role in the fair administration of justice. Please try to remember that trials are very fluid processes. Sometimes issues arise that demand attention of the lawyers and paralegals involved in the case.
Please trust that your piece in the puzzle is important. At the outset of a trial, it is important for either side to have all of the available instruments for their part in the battle of a court-martial trial. It may be that during the course of the trial, that one piece in the puzzle became less significant or was overcome by other testimony. If you are called upon to testify in a trial but end up not testifying, that does not make your time wasted. Trials are fluid and circumstances change moment to moment.
Trials can even continue (which means to reset for several months down the road) weeks or even days in advance of the scheduled trial.
We do our very best to keep the trial progressing on time and as scheduled, but sometimes events happen outside of our control. Remaining patient will help everyone involved to approach problem solving in a calm and productive manner.
We want to thank you for your participation in the court-martial proceedings.