W. Va. Code R. § 141-49-5
Current through Register Vol. XLI, No. 40, October 4, 2024
Section 141-49-5 - Trial Procedure5.1. Counsel. 5.1.a. Trial Counsel. In general and special courts-martial, trial counsel shall prosecute in the name of the State of West Virginia. He will discharge the duties imposed upon him by USCMJ, WVMCM and MCM, as applicable.5.1.b. Defense Counsel. In general and special courts-martial, defense counsel will diligently represent the accused and fully advise him of all rights, following the requirements of the USCMJ, WVMCM and MCM, as applicable.5.2. General Trial Procedure. The procedure, including forms, methods of proof and rules of evidence, in cases before military courts, courts of inquiry and other military tribunals shall be governed by the provisions of the USCMJ, WVMCM, MCM, M.R.E, R.C.M., and other applicable state regulations as amended and supplemented from time to time, and regulations of the United States governing the administration of military justice in the armed forces of the United States, unless the same shall be incompatible with state law or regulation.
5.3. Summary Court-Martial Procedure for Summary Court Officers.5.3.a. A Summary Court Officer in the trial of cases referred to him for trial is encouraged to refer to this regulation, USCMJ, MCM, and particularly to DA PAM 27-7, using it as a guide where applicable.5.3.b. Pretrial Duties of Summary Court Officers. 5.3.b.1. Examine the Charge Sheet for any errors in preparation and determine whether the charges are sworn and whether the endorsement is correct.5.3.b.2. Determine whether the Summary Court Officer is free of any conflict in interest which would impair a fair and impartial trial. If there is such a conflict he should notify the convening authority.5.3.b.3. If the charges have not been served, the Summary Court Officer will serve a copy of the Charge Sheet on the accused, together with a written order of the convening authority to appear before the court. He should also inform the accused as to the date, time and place of trial, at which time the accused is to be present with any witnesses he may have and retain legal counsel at his own expense, if he so desires.5.3.b.4. Familiarize yourself with the applicable law and plan an orderly proceeding.5.3.b.5. Notify all known witnesses of the date, time and place of trial and arrange for subpoena of witnesses where necessary. A review by the Staff Judge Advocate is required prior to issuing a subpoena to civilian personnel.5.3.c. Trial Procedure. 5.3.c.1. Conduct the trial with proper military customs and decorum.5.3.c.2. The accused is presumed innocent until the Summary Court Officer is convinced of his guilt beyond a reasonable doubt by legal and competent evidence received by the Summary Court Officer at the trial in the accused's presence.5.3.c.3. The procedures described in DA PAM 27-7 are recommended.5.3.c.4. The accused has the right to object to trial by summary court-martial. If the accused objects, the charges will be returned to the convening authority with the appropriate endorsement.5.3.c.5. The accused has the right to examine all government witnesses and to present evidence on his own behalf through witnesses or documents. He has the right to remain silent or to testify in his own behalf.5.3.d. Findings. After all of the evidence has been presented, the Summary Court Officer will make separate findings of guilty or not guilty to each charge and to each specification or guilty to a lesser included offense.5.3.e. Sentence. 5.3.e.1. If a finding of guilty has been made, the Summary Court Officer will: 5.3.e.1.A. Furnish the accused with a copy of the Charge Sheet and ask him if the personal data appearing on page 1 of the Charge sheet, including data as to restraint, are correct. If the accused alleges that any of the data is incorrect, the Summary Court Officer must determine the issue after obtaining any official verification available.5.3.e.1.B. Receive and consider any evidence of previous convictions, and determine from the accused and any official source if the data as to previous convictions is correct.5.3.e.1.C. Ask the accused whether he wishes to call any witnesses in mitigation or extenuation.5.3.e.1.D. Receive any documents which the accused wishes to offer in mitigation or extenuation (See R.C.M. 1001).5.3.e.1.E. Advise the accused again as to his right to testify or remain silent or to make an unsworn statement.5.3.e.1.F. If the accused elects to testify under oath, the Summary Court Officer should swear the accused or remind him that he is still under oath, if previously sworn. The summary Court Officer may cross-examine the accused after making a sworn statement. If the accused elects to make an unsworn statement, the Summary Court Officer should receive the statement.5.3.e.1.G. If necessary and appropriate, call rebuttal witnesses to matters in mitigation and extenuation.5.3.e.1.H. After receiving all of the evidence, announce an appropriate sentence within the limitations of Section 20, USCMJ.5.3.e.1.I. Enter the sentence in the record of trial.5.3.f. Post-Trial Duties. 5.3.f.1. Complete the record of trial. Prepare an original and at least two copies of the record of trial. Authenticate the record by signing each copy in the space provided. As soon as the record is authenticated, a copy of the record of trial is to be served on the accused and attach the accused's receipt for the copy to the record. If the accused was represented by counsel, the copy of the record may be served on counsel. The original and one copy of the record must be forwarded to the convening authority.5.3.f.2. Report the results of the trial to the convening authority, the immediate commander of the accused, the officer in command of the facility where accused was in pretrial confinement, if appropriate, and any persons required by the convening authority.5.3.f.3. Return the file to the convening authority with any recommendation in writing for clemency, if appropriate.5.3.f.4. Avoid unnecessary delay.W. Va. Code R. § 141-49-5