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Page Title: The Arraignment
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the 3-day period, neither the date of service nor the date of trial count. Sundays and holidays do count, however,  in  computing  the  statutory  period.  If  the accused  is  served  on  Wednesday,  one  must  wait Thursday,  Friday,  and  Saturday  before  compelling trial.  Trial  in  this  example  could  not  be  compelled before  Sunday,  and,  as  a  practical  matter,  not  before Monday.  You  will  find  that  at  U.S.  shore  estab- lishments, trials normally do not occur on the week- ends. However, when ships are at sea or in overseas ports, a trial is possible at any time and any day of the week. The date of service of charges upon the accused is reflected by the certificate in block 15 at the bottom of page 2 of the charge sheet. The TC normally exe- cutes this certificate when he or she presents a copy of the charge sheet to the accused personally. He or she must  do  this  even  though  the  accused  has  previously been informed of the charges against him or her. This service of a copy of the charge sheet may also be done by the command at any time after referral as long as the service is to the accused personally. Any accused can lawfully object to participating in trial proceed- ings before the 3-day waiting period has expired. The accused  may,  however,  waive  the  3-day  period,  so long as he or she understands the right and voluntarily agrees to go to trial earlier. Pretrial Hearings After the 3-day period has elapsed, the military judge may hold sessions of court without members for the  purpose  of  litigating  motions,  objections,  and other matters not amounting to a trial of the accused’s guilt or innocence. The accused may be arraigned and his or her pleas taken and determined at such a hear- ing. At such hearings, the judge, TC, DC, accused, and reporter will be present. Several such hearings may  be  held  if  desired.  These  hearings  are  commonly referred  to  as  Article  39(a)  sessions. Preliminary  Matters At the initial pretrial hearing (Article 39(a) ses- sion),  the  first  order  of  business  is  to  incorporate  into the  record  those  documents  relating  to  the  convening of the court and referral of the case for trial. Also all oaths  are  administered.  The  convening  order  and  the charge sheet and any amendments to either document become matters of record at this point in the proceed- ings. In addition, an accounting of the presence or ab- sence  of  those  personnel  required  to  be  present  is made.  This  accounting  includes  all  persons  named  in the convening order, the counsel, the reporter, and the military  judge.  Qualifications  of  all  personnel  are checked  for  the  record. The Arraignment The arraignment is the procedure involving the reading of the charges to the accused and asking for the accused’s pleas. The actual pleading is not part of the  arraignment.  The  arraignment  is  complete  when the accused is asked to enter his or her pleas. This stage is an important one in the trial because if the accused voluntarily absents himself or herself without authority and does not thereafter appear during court sessions, he or she may nevertheless be tried and, if the  evidence  warrants,  convicted.  The  arraignment  is also  the  cutoff  point  for  the  adding  of  additional charges to the trial. After arraignment, no new charges can be added without the consent of the accused. Motions At arraignment, the military judge advises the accused that his or her pleas are about to be requested and that if he or she desires to make any motions he or she should now do so. Many times all such motions (attacking jurisdiction, sufficiency of charges, illegal pretrial confinement, and speedy trial) will have al- ready been litigated at a previous pretrial hearing. Nevertheless, the accused may decide to make addi- tional motions and is allowed to do so. If there are motions, they are litigated at this time. If there are no motions, the trial proceeds to the arraignment. Pleas The arraignment is the process of asking the ac- cused to plead to charges and specifications. The re- sponses  of  the  accused  to  each  specification  and charge are known as the pleas. The recognized pleas in military practice are guilty, not guilty, guilty to a lesser  included  offense,  and,  under  some  circum- stances, a conditional plea of guilty. Any other pleas (such  as  nolo  contendere)  are  improper,  and  the  mili- tary judge enters a plea of not guilty for the accused. NOT GUILTY PLEAS.—  When  not  guilty  pleas are entered by the court or accused, the trial proceeds to  the  presentation  of  evidence—first  by  the  prosecu- tor and then by the defense. 7-15

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