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Presentencing Procedure - 14134_215
GUILTY PLEAS.—  Where guilty pleas are en- tered or the accused pleads guilty to a lesser included offense,  the  judge  determines  that  such  pleas  are  made knowingly and voluntarily and that the accused un- derstands the meaning and effect of such pleas. This process is known as providency. The military judge advises the accused (1) of the maximum sentence that can be imposed in his or her case; (2) that a plea of guilty is the strongest form of proof known to the law; and (3) that by pleading guilty the accused is giving up the right to a trial of the facts, the right against self-incrimination, and the right to confront and to cross-examine  the  witness  against  him  or  her.  In addition,  the  judge  explores  the  facts  thoroughly  with the accused to obtain from the accused an admission of  guilt-in-fact  to  each  element  of  the  offense(s)  to which the pleas relate. CONDITIONAL  PLEAS.—  With the approval of the military judge and the consent of the TC, an accused may enter a conditional plea of guilty. The main purpose of such a conditional plea is to preserve for appellate review certain adverse determinations that the military judge may make against the accused regarding  pretrial  motions.  If  the  accused  prevails  on appeal,  his  or  her  conditional  plea  of  guilty  may  then be  withdrawn. Assembly of the Court After the accused enters pleas, the military judge assembles  the  court.  This  is  done  by  bringing  the members into the courtroom if it is a member’s trial. The  military  judge  announces  that  all  parties  are  pres- ent and the members are sworn. The court is then assembled,  After  assembly  the  military  judge  may give preliminary instructions to the members. Any witnesses  that  are  expected  to  be  called  to  testify  are asked to withdraw from the courtroom. The TC re- states the general nature of the charges in the case for the benefit of the members. Challenge Procedure Where  the  court  is  composed  of  members,  the next stage will involve a determination of the eligibil- ity of court members to participate in the trial. Mem- bers  may  be  asked  questions  individually  or collectively. This procedure is called  voir dire. This procedure  determines  whether  or  not  a  member  is suitable to sit as a member of the court-martial. Mechanically, both the TC and DC are given an opportunity  to  question  each  member  to  see  if  a ground  for  challenge  exists.  In  this  connection,  there are two types of challenges—challenges for cause and peremptory challenges. A challenge, if sustained by the judge who rules upon it, excuses the challenged member from further participation in the trial. The law places no limit on the number of challenges for cause that can be made at a trial. A peremptory chal- lenge is a challenge that can be made for any reason. The TC and accused are entitled to one peremptory challenge. Case on the Merits At  this  point  the  military  judge  announces  to  the members the plea(s) of the accused. The TC and DC may  make  one  opening  statement  to  the  court  before the  presentation  of  evidence  begins.  The  defense  may elect to make its opening statement after the prosecu- tion  has  rested  and  before  the  presentation  of  evidence for the defense. After opening statements are made, the  prosecution  commences  presenting  his  or  her case-in-chief. Each party has full opportunity to pre- sent evidence. Ordinarily the following sequence is used: l l l l l l Presentation  of  evidence  for  the  prosecution Presentation  of  evidence  for  the  defense Presentation  of  prosecution  evidence  in  rebut- tal Presentation of defense evidence in surrebuttal Additional rebuttal evidence in the discretion of the military judge Presentation of evidence requested by the mili- tary judge or members The testimony of witnesses is taken orally in open session. Each witness must testify under oath. After the witness is sworn he or she is identified for the record. The party calling the witness conducts direct examination  of  the  witness,  followed  by  cross-exami- nation  of  the  witness  by  the  opposing  party.  Redirect and  recross-examinations  are  conducted  as  necessary followed by any questions by the military judge or members.  All  documentary  and  real  evidence  is marked  and  introduced  into  evidence. Argument  on  Findings  and  Findings After  all  evidence  has  been  presented,  the  TC makes argument on findings. Following the TC’s ar- gument, the DC presents argument. In this stage the 7-16

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