Illinois Administrative Code
Title 95 - VETERANS AND MILITARY AFFAIRS
Part 400 - ILLINOIS MANUAL FOR COURT-MARTIAL AND NONJUDICIAL PUNISHMENT
Subpart D - COURTS-MARTIAL JURISDICTION AND COMPOSITION
Section 400.415 - Courts-Martial Composition
Universal Citation: 95 IL Admin Code ยง 400.415
Current through Register Vol. 48, No. 12, March 22, 2024
a) Members of a Court-Martial
1)
Any SMF commissioned officer is eligible to serve on
all courts-martial for the trial of any persons subject to the
Code. (Code Section 25(a))
2)
Any SMF warrant
officer is eligible to serve on general and special courts-martial for the
trial of any person subject to the Code, other than a
commissioned officer. (Code Section 25(b))
3)
Any enlisted member of
the SMF who is not a member of the same unit as the accused is
eligible to serve on general and special courts-martial for the trial of any
enlisted member subject to the Code,but that
member shall serve as a member of a court only if, before the conclusion of a
session called by the military judge under Code Section 39(a)
prior to trial or, in the absence of such a session, before the court
is assembled for the trial of the accused, the accused personally has requested
orally on the record or in writing that enlisted members serve on it. After
such a request, the accused may not be tried by a general or special
court-martial unless the membership includes at least 1/3 enlisted members,
unless eligible enlisted members cannot be obtained on account of physical
conditions or military exigencies. If enlisted members cannot
be obtained, the court may be assembled and the trial held without them, but
the convening authority shall make a detailed written statement, to be appended
to the record, stating why they could not be obtained. In this
subsection (a), "unit" means any regularly organized body of
the SMF not larger than a company, a squadron or a body
corresponding to a company or squadron. (Code Section 25(c))
4)
When it can be avoided, no person
subject to the Code may be tried by a court-martial any member
of which is junior to the accused in rank or grade. (Code Section
25(d))
5)
When convening a
court-martial, the convening authority shall detail as members of the
court-martial such SMF members as, in the convening
authority's opinion, are best qualified for the duty by reason of age,
education, training, experience, length of service, and judicial temperament.
No SMF member is eligible to serve as a member of a general or
special court-martial when that member is the accuser or a witness, or has
acted as investigating officer or as counsel in the same case. (Code
Section 25(e))
6)
Before a
court-martial is assembled for the trial of a case, the convening authority may
excuse a member of the court from participating. The convening authority may
delegate the authority under this subsection (a)(6) to a judge
advocate or to any other principal assistant. (Code Section
25(f))
7) Any delegation of
authority to a judge advocate or principal assistant for purposes of excusal of
members must be in writing, unless exigencies prevent written delegation.
Verbal authorization shall be reduced to writing as soon as possible.
8) Duties. The members of a court-martial
shall determine whether the accused is proved guilty and, if necessary, adjudge
a proper sentence, based on the evidence and in accordance with the
instructions of the military judge. Each member has an equal voice and vote in
deliberating upon and deciding all matters, except as otherwise specifically
provided in this Manual. 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, except that the president of a special court-martial
without a military judge may use these materials in open session.
9) President
A) Qualifications. The president of a
court-martial shall be the detailed member senior in rank then
serving.
B) Duties. The president
shall have the same duties as the other members and shall also:
i) Preside over closed sessions of the
members of the court-martial during their deliberations;
ii) Speak for the members of the
court-martial when announcing the decision of the members or requesting
instructions from the military judge; and
iii) In a special court-martial without a
military judge, perform the duties assigned by this Manual to the military
judge, except as otherwise expressly provided.
b) Military Judges
1) Qualifications to serve as a military
judge are described in Code Sections 6 and 26. In addition to the mandatory
qualifications delineated in Code Sections 6 and 26, the following factors may
be considered when certifying an officer as a military judge:
A) Appropriate judicial decorum, civility and
temperament;
B) Civilian judicial
experience;
C) Military judicial
experience;
D) Military legal
experience;
E) Designation as judge
advocate;
F) Reputation;
G) Familiarity with the Code and this
Manual;
H) Completion of the active
component Military Judges Course;
I) Knowledge of general criminal law and
procedures;
J) Education, training
and experience;
K) Familiarity with
the customs, procedures and organization of the service branch of the accused;
and
L) Any other relevant
factors.
2)
In
addition to the requirements noted in Code Section 6(a), a
military judge shall be:
A)
an active commissioned officer of an organized SMF;
B)
a member in good standing of the
bar of the highest court of a state or a member of the bar of a federal court
for at least 5 years; and
C)
certified as qualified for duty as
a military judge by the senior force judge advocate that is in the
same force as the accused. (Code Section 26(b))
3)
When a military judge
is not a member of the bar of the highest court of the state, he or
she shall be deemed admitted pro hac vice, subject to filing a
certificate with the senior force judge advocate in the same force as the
accused, setting forth the qualifications listed in
subsection (b)(1). (Code Section 26(c))
4)
The military judge of a general or
special court-martial shall be designated by the senior force judge
advocate in the same force as the accused, or a designee, for
detail by the convening authority. Neither the convening authority nor any
staff member of the convening authority shall prepare or review any report
concerning the effectiveness, fitness or efficiency of the military
judge that relates to performance of duty as a military
judge. (Code Section 26(d))
5)
No person is eligible to act as
military judge in a case if that person is the accuser or a witness, or has
acted as investigating officer or a counsel in the same case. (Code
Section 26(e))
6)
The
military judge of a court-martial may not consult with the members of the court
except in the presence of the accused, trial counsel, and defense counsel, nor
vote with the members of the court. (Code Section 26(f))
c) Absent and Additional Members
1)
No member of a general or special
court-martial may be absent or excused after the court has been assembled for
the trial of the accused unless excused as a result of a challenge, excused by
the military judge for physical disability or other good cause, or excused by
order of the convening authority for good cause. (Code Section
29(a))
2)
Whenever a
general court-martial, other than a general court-martial composed of a
military judge only, is reduced below 5 members, the trial may not proceed
unless the convening authority details new members sufficient in number to
provide not less than the applicable minimum number of 5. The trial may proceed
with the new members present after the recorded evidence previously introduced
before the members of the court has been read to the court in the presence of
the military judge, the accused, and counsel for both sides. (Code
Section 29(b))
3)
Whenever
a special court-martial, other than a special court-martial composed of a
military judge only, is reduced below 3 members, the trial may not proceed
unless the convening authority details new members sufficient in number to
provide not fewer than 3 members. The trial shall proceed with
the new members present as if no evidence had been introduced previously at the
trial, unless a verbatim record of the evidence previously introduced before
the members of the court, or a stipulationto that record, is
read to the court in the presence of the military judge, the accused and
counsel for both sides. (Code Section 29(c))
4)
If the military judge of a
court-martial composed of a military judge only is unable to proceed with the
trial because of physical disability, as a result of a challenge, or for other
good cause, the trial shall proceed, subject to any applicable conditions
of Code Section 16(1)(B) or (2)(B), after the detail of a new
military judge as if no evidence had previously been introduced, unless a
verbatim record of the evidence previously introduced, or a stipulation to that
record is read in court in the presence of the new military judge, the accused,
and counsel for both sides. (Code Section 29(d))
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