Qualifications and duties of personnel of

courts-martial (a) Members. (1) General courts-martial. (A) Non-capital cases. In non-capital cases, a general court-martial shall consist of: (i) A military judge and eight members; (ii) A military judge, eight members, and any the convening alternate members authorized by authority; (iii) A military judge alone if trial by a military judge is requested and approved under R.C.M. 903; or (iv) A military judge and six or seven members, but only if, after impanelment, the panel is reduced below eight members as a result of challenges or excusals. (B) Capital cases. In capital cases, a general court- martial shall consist of: (i) A military judge and twelve members; or (ii) A military judge, twelve members, and any the convening alternate members authorized by authority. (2) Special courts-martial. Special courts-martial shall consist of: (A) A military judge and four members; (B) A military judge, four members, and any the convening alternate members authorized by authority; (C) A military judge alone if trial by a military judge is requested and approved under R.C.M. 903; or (D) A military judge alone if the case is referred for trial by a special court-martial consisting of a military judge alone under Article 16(c)(2)(A). (b) Counsel in general and special courts-martial. Military trial and defense counsel shall be detailed to general and special courts-martial. Assistant trial and associate or assistant defense counsel may be detailed. (c) Other personnel. Other personnel, such as interpreters, bailiffs, clerks, escorts, and orderlies, may be detailed or employed as appropriate but need not be detailed by the convening authority personally. II-30 (1) Qualifications. The members detailed to a court-martial shall be those persons who in the opinion of the convening authority are best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament. Each member shall be on active duty with the armed forces and shall be: (A) A commissioned officer; (B) A warrant officer, except when the accused is a commissioned officer; or (C) An enlisted person, except when the accused is either a commissioned or warrant officer. (2) Duties. (A) Members. The members of a court-martial shall determine whether the accused is proved guilty and, in a capital case in which the accused is found guilty of a capital offense, or in a non-capital case when the accused elects sentencing by members in accordance with R.C.M. 1002, the members shall determine an appropriate sentence, based on the evidence and in accordance with the instructions of the military judge. Each member has an equal voice and vote with other members in deliberating upon and deciding all matters submitted to them. No member may use rank or position to influence another member. No member of a court-martial may have access to or use in any open or closed session this Manual, reports of decided cases, or any other reference material. (B) Alternate members. Members impaneled as alternate members shall have the same duties as members under subparagraph (A). However, an alternate member shall not vote or participate in deliberations on findings or sentencing unless the alternate member has become a member by replacing a member who was excused after impanelment under R.C.M. 912B. (b) President. (1) Qualifications. The president of a court-martial shall be the detailed member senior in rank then serving. (2) Duties. The president shall have the same duties as the other members and shall also: (A) Preside over closed sessions of the members of the court-martial during their deliberations; and (B) Speak for the members of the court-martial when announcing the decision of the members or requesting instructions from the military judge (c) Qualifications of military judge and military magistrate. (1) Military judge. A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a federal court or a member of the bar of the highest court of a State and who is certified to be qualified, by reason of education, training, experience, and judicial temperament, for duty as a military judge by the Judge Advocate General of the armed force of which such military judge is a member. In addition, the military judge of a general court-martial shall be designated for such duties by the Judge Advocate General or the Judge Advocate General’s designee, certified to be qualified for duty as a military judge of a general court-martial, and assigned and directly responsible to the Judge Advocate General or the Judge Advocate General’s designee. The Secretary concerned may prescribe additional qualifications for military judges in special courts-martial. (2) Military magistrate. The Secretary concerned may establish a military magistrate program. A military magistrate shall be a commissioned officer of the armed forces who is a member of the bar of a federal court or a member of the bar of highest court of a State and who is certified to be qualified, by reason of education, training, experience, and judicial temperament, for duty as a military magistrate by the Judge Advocate General of the armed force of which such military magistrate is a member. (3) Minimum tour lengths. A person assigned for duty as a military judge shall serve as a military judge for a term of not less than three years, subject to such provisions for reassignment as may be prescribed in regulations issued by the Secretary concerned. (d) Counsel. (1) Qualifications of trial counsel. (A) General courts-martial. Only persons certified under Article 27(b) as competent to perform duties as counsel in courts-martial by the Judge Advocate General of the armed force of which the counsel is a member may be detailed as trial counsel in general courts-martial. (B) Trial counsel in special courts-martial and assistant trial counsel in general or special courts- martial. Any commissioned officer may be detailed as trial counsel in special courts-martial, or as assistant trial counsel in general or special courts-martial if that person— (i) is determined to be competent to perform such duties by the Judge Advocate General; and (ii) takes an oath in accordance with Article 42(a), certifies to the court that the person has read and is familiar with the applicable rules of procedure, evidence, and professional responsibility, and meets any additional qualifications the Secretary concerned may establish. (2) Qualifications of defense counsel. (A) Detailed military counsel. Only persons certified under Article 27(b) as competent to perform duties as counsel in courts-martial by the Judge Advocate General of the armed force of which the counsel is a member may be detailed as defense counsel, assistant defense counsel, or associate defense counsel in general or special courts-martial. (B) Individual military counsel and civilian defense counsel. Individual military or civilian defense counsel who represents an accused in accordance with Article 38(b) in a court-martial shall be: (i) a member of the bar of a federal court or of the bar of the highest court of a State; or (ii) 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. (C) Counsel in capital cases. (i) In general. In any capital case, to the greatest extent practicable, at least one defense counsel shall, as determined by the Judge Advocate General, be learned in the law applicable to such cases. If necessary, this counsel may be a civilian and, if so, may be compensated regulations accordance with prescribed by the Secretary of Defense. in (ii) Qualifications. A counsel learned in the law applicable to capital cases is an attorney whose background, knowledge, or experience would enable him or her to competently represent an accused in a capital case, with due consideration of the seriousness II-31 of the possible penalty and the unique and complex nature of the litigation. court-martial of which the trial is a rehearing or new or other trial. (3) Disqualifications. No person shall act as trial counsel or assistant trial counsel or, except when expressly requested by the accused, as defense counsel or associate or assistant defense counsel in any case in which that person is or has been: (A) The accuser; (B) An investigating or preliminary hearing officer; (C) A military judge or appellate military judge; or (D) A member. (4) Duties of trial and assistant trial counsel. Trial counsel shall prosecute cases on behalf of the United States. Under the supervision of trial counsel an assistant trial counsel may perform any act or duty which trial counsel may perform under law, regulation, or custom of the Service. (5) Duties of defense and associate or assistant defense counsel. Defense counsel shall represent the accused in matters under the UCMJ and these rules arising from the offenses of which the accused is then suspected or charged. Under the supervision of defense counsel an associate or assistant defense counsel may perform any act or duty which a defense counsel may perform under law, regulation, or custom of the Service. (e) Interpreters, reporters, escorts, bailiffs, clerks, guards, and orderlies. (1) Qualifications. The qualifications of interpreters and reporters may be prescribed by the Secretary concerned. Any person who is not disqualified under paragraph (e)(2) of this rule may serve as escort, bailiff, clerk, guard, or orderly, subject to removal by the military judge. In addition (2) Disqualifications. any disqualifications which may be prescribed by the Secretary concerned, no person shall act as interpreter, reporter, escort, bailiff, clerk, guard, or orderly in any case in which that person is or has been in the same case: to (A) The accuser; (B) A witness; (C) An investigating or preliminary hearing officer; (D) Counsel for any party; or (E) A member of the court-martial or of any earlier II-32 (3) Duties. In addition to such other duties as the Secretary concerned may prescribe, the following persons may perform the following duties. (A) Interpreters. Interpreters shall interpret for the court-martial or for an accused who does not speak or understand English. (B) Reporters. Reporters shall record the proceedings and testimony and shall transcribe them so as to comply with the requirements for the record of trial as prescribed in these rules. (C) Others. Other personnel detailed for the assistance of the court-martial shall have such duties as may be imposed by the military judge. (4) Payment of reporters, interpreters. The Secretary concerned may prescribe regulations for the payment of allowances, expenses, per diem, and compensation of reporters and interpreters. (f) Action upon discovery of disqualification or lack of qualifications. Any person who discovers that a person detailed to a court-martial is disqualified or lacks the qualifications specified by this rule shall cause a report of the matter to be made before the court- martial is first in session to the convening authority or, if discovered later, to the military judge.