United States v. Story, No. 20061014 (A. Ct. Crim. App. Dec. 2, 2009) (unpublished) deals with the panel members’ right to call witness. During the accused’s trial, the members were on a two-hour break after both sides had rested but before closing arguments and instructions. When the panel returned, a member asked to call an additional witness. The military judge responded, “The answer to that is, you’ve heard all the evidence in this case.” The ACCA held the military judge erred though the error was harmless.
Panel members have a statutory right to call witnesses and obtain evidence. Under Article 46, UCMJ, “The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.” R.C.M. 921(b) expressly allows the members to “request that the court martial be reopened and that portions of the record be read to them or additional evidence introduced” though the rule grants the military judge latitude “in the exercise of discretion” to grant or deny such request.
R.C.M. 801(c) similarly provides: “The court-martial may act to obtain evidence in addition to that presented by the parties. The right of the members to have additional evidence obtained is subject to an interlocutory ruling by the military judge.” The Discussion to R.C.M. 801(c) notes the members may request a witness be recalled or that a “new witness be summoned.” M.R.E. 614(a) also notes the military judge may call (or recall) witnesses “at the request of the members.”
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