07-02-2004, 05:40 PM
These rules are hereby adopted and put into effect this Thirtieth day of June, 2004 in the first year of the reign of His Majesty of Alexander, King of Hanover, by authority granted to me, Lord Lancaster as Chief Justice over the High court.
Rule One: Applicability
1. These rules apply to any and all trials of the Royal Hanover High Court in which the parties are under the jurisdiction of the Kingdom of Hanover. Counsel, as officers of the court, shall follow these rules, unless doing so would deprive the client of effective representation or would interfere with the exercise of an accused’s right to due process. Reporters, Judges, Clerks, Bailiffs, and all others involved with courtroom procedure will follow these rules where they apply.
2. Any counsel, who fails to comply with these rules, or orders of the court maybe required to explain his or her reasons for non-compliance on the record, or in writing for inclusion in the record of trial as an appellate exhibit.
3. With regard to non-compliance with these rules, or orders of the court, a judge may, as appropriate:
I. Issue an admonishment on the record.
II. Remedy the effect of non-compliance through a court order or continuance.
III. Forward information about the matter to a military counsel's commanding officer or officer-in-charge.
IV. Forward information about the matter to a civilian counsel's bar.
V. Forward a complaint for processing.
VI. Proceed with action for "contempt", or:
VII. Fashion any other appropriate remedy.
Rule Two: Purpose
1. These rules are intended to facilitate a just determination of justice issues and to enhance the orderly administration of justice.
2. Operating within our adversarial system, the goal of a trial is the search for the truth. To provide the best opportunity for justice to be done, a trial should have an efficient presentation of evidence and arguments to the trier of fact in a setting that promotes a sense of the importance of the outcome.
3. Counsel for both sides are expected to strive to conduct an exemplary trial. In an exemplary trial, trial time is regarded as precious. The members are rarely sent out for extensive arguments of counsel on points of law, as these are thought out, presented to the court, and decided upon well ahead of the arrival of the members. Counsel are able to frame their opening statements by properly balancing fact and emotion. Direct examination educates the members step-by-step about the essential facts and circumstances of the case. Exhibits are handled expeditiously, and demonstrative evidence is planned and prepared well in advance. Objections are ruled upon promptly without excessive argument and are limited in numbers. Succeeding witnesses are presented without the need for recesses. Cross examination by counsel is focused and succinct and reflects that the counsel questioning the witness has fully investigated the issues. Everyone has the sense that counsel know exactly where they are going. Closing arguments stick to the evidence and do not invite objection. Counsel are well prepared with request for rulings or member’s instructions far in advance of closing arguments. Counsel do not vie to have the last word.
Rule Three: Construction
1. These rules shall be constructed to ensure simplicity in procedure, fairness in administration, and efficiency of operation, and the timely disposition of trial They shall be interpreted so as to provide the maximum adaptability to the conditions under which the Prosecutor Generals offices must provide their operational missions. Non-compliance with these rules will not create a right in or remedy for either party to a trial, but adherence to these rules will relate to the professionalism of the individuals involved. Arbiters of these rules will be the Justices of the Royal Hanover High Court.
2. If any rule herein conflicts with case law, statute, any constitutional provision, or any service regulation, then that rule shall have no effect.
Rule Four: Information Regarding Languishing Cases
1. Trial counsel shall provide to the Justices all information regarding any referred trial which is not moving to trial with all deliberate speed.
Rule Five: Referred Charges
1. Trial counsel shall provide Courts with a copy of referred charges and corresponding convening orders as soon after receipt as possible.
2. Defence counsel will examine the personal data on the charge sheet, determine its accuracy, and notify the trial counsel and the Justices of any necessary corrections, additions or deletions.
3. All changes to the charge sheet shall be initialled and dated by the trial counsel or other representative of the convening authority.
Rule Six: Pretrial Information Report (PTIR) and Docketing Requests
1. Prosecution counsel shall initiate a Pre-trial Information Report (PTIR) for each referred case. This will include a copy of the referred charge sheet as enclosure one, and a copy of the convening order for the trial as enclosure two, if not previously provided. The first PTIR submitted on a referred case shall also include proposed trial dates and filing deadlines. With the PTIR, or subsequent PTIRs, trial counsel will include copies of the relevant portions of any law, ordinance, regulation or other legal statute alleged to have been violated, attached as enclosure (3). Written motions are also required to be submitted with the PTIR. After completing all applicable portions of the report, trial counsel shall forward it to defence counsel and the Justices with a copy to trial counsel. If unusual or compelling circumstances render it impracticable to use the PTIR, defence counsel should advise trial counsel, as soon as possible, but at least 24 hours before trial, of pleas and whether the accused intends to request trial by Justices alone or by members.
2. When a docketing request is submitted, a completed PTIR must be submitted for each case to be docketed. This requirement also applies to cases that have been judicially docketed by the Chief Justice at prior to trial scheduled through the use of a motion for docketing, as well as through written continuance requests. Both counsel will sign the PTIR. However, if for any reason, the defence counsel or trial counsel is not available when the PTIR is due, the senior Prosecutor of the Prosecutor Generals Office shall complete the PTIR, explain the absence of counsel, attach the required documents, and submit the report with the docketing request. The trial counsel should ordinarily prepare and submit the report to the defence counsel prior to any expected absence, even if the case is not to be docketed the next week. All anticipated motions, including multiplicity and illegal restraint, must be listed on the PTIR. If the pleas are mixed, or by exception and substitution, a detailed list of pleas shall be included in the PTIR. This block shall also state if the Government will or will not contest the offences or the excepted language to which the accused pled not guilty. Counsel signatures certify the accuracy of the information contained in the PTIR.
3. Either party may request an hearing of a referred trial for any reason, using the docketing procedures listed below. Defence counsel or Trial counsel may also request conferences at any time and for any reason.
4. In the proposed trial dates and filing deadlines for a case, counsel shall establish a motions filing deadline that is no less than 10 days in advance of the date requested of the trial to litigate motions. The deadline for filing response to any motions in a case shall be no less than 5 days in advance of the session. Exceptions to this rule require the Chief Justice in Councils approval.
5. Counsel can best estimate the length of proposed sessions or trial. However, ordinarily, contested members cases should be docketed for at least three days. Those estimates include a period for sentencing, should it become necessary. The litigation of motions should ordinarily be scheduled for a session well in advance of any session with court members. Counsel should request session for any motion for witness production sufficiently before trial to allow for the presence of the witness on the docketed trial date. Counsel should request a session well ahead of trial for any motions that the resolution of which may adversely affect the docketed trial date.
6. If, at the time the docketing request is submitted, counsel are negotiating, but have not yet concluded, a pre-trial agreement, then an session should be requested with a notation on the PTIR that a pre-trial agreement is anticipated. The case should not be docketed as a contested, members case. Proposed pleas will be detailed on the PTIR. Pre-trial consultation with the Justices conference is encouraged. If pleas will be by exceptions and substitutions, the exact language of such pleas shall be included in enclosure 3 of the PTIR.
7. Charges not referred to courts-martial and cases without PTIRs with all of the required enclosures will not be docketed without good cause and approval by the Justices.
8. Cases that were not included in the docketing request will be added to the court docket only for good cause approved by the Justices. These so-called "walk-ins" or "walk-ons" are strongly discouraged. Such requests will not be approved when the sole purpose is to arraign an accused and establish trial dates and filing deadlines for a case not involving pre-trial confinement or speedy trial concerns. Trial and/or defence counsel promises to convening or other authorities that cases will be tried immediately (as an inducement for pre-trial agreements) will not constitute good cause for a "walk-in."
9. At the earliest opportunity, trial or defence counsel must notify the Justices of any changes to the PTIR (including withdrawal of, or amendments to charges, new motions, forum change, change in pleas, etc.) and requests to change the time, date, or location of the trial.
10. The trial deadlines established at an arraignment are not optional. Counsel will adhere to the deadlines and may be called upon to address, on the record, any failure to abide by them. A counsel who fails to meet deadlines, not only tarnishes his or her own reputation with the court, but also unfairly impacts opposing counsel’s ability to properly prepare for a case (i.e. to respond to a motion etc), which in turn can lead to unnecessary delays in a case.
11. Counsel shall submit matters in accordance with the court-established deadlines. These matters include witness lists, exhibit lists, proposed voir dire questions, requests for instructions etc. Notice of pleas and forum shall be submitted in accordance with attachment (5). Counsel who fail to submit matters in a timely manner, may in the discretion of the military judge, forfeit the opportunity to conduct general voir dire of the members.
Rule Seven: Ex Parte Communications with the Justices
1. Ex parte communications with the Justices concerning a case that is pending is prohibited, except for routine administrative matters and as otherwise provided by law.
2. Routine administrative matters include docketing and logistical matters, including but not limited to pleas, forum, and number of or difficulty with witnesses that affect the time, location, and length of court sessions.
3. The prohibition against ex parte communications extends to electronic mail. Counsel shall include opposing counsel as a “copy” addressee on all electronic mail sent to th Justices about case related matters, regardless of whether it is merely administrative in nature.
4. When appropriate, military judges will conduct critiques or offer suggestions regarding counsel performance in courts-martial to improve the administration of justice. These sessions shall be conducted with both the trial and defence counsel present, or in group sessions.
Rule Eight: Conferences
1. Conferences, between the Justices and trial and defense counsel are authorized. The presence of the accused is neither required nor prohibited. Conferences may be held before or during trial by e-mail. They are used to inform the Justices of unusual issues that are likely to affect the duration, progress, or disposition of a case, and to expeditiously resolve matters on which the parties can agree. Such conferences shall not be used to litigate or decide contested issues.
2. In contested members cases, counsel should seek, and the Justice should normally schedule, a trial management conference approximately one week prior to trial on the merits.
Rule Nine: Discovery
1. Counsel shall promptly comply with all law regarding discovery. Counsel shall not make a frivolous discovery request or fail to make a diligent effort to comply with a legal and proper discovery request by an opposing party. Gamesmanship in the discovery process will not be tolerated.
2. Notwithstanding "open discovery" discovery requests should be as specific as possible to avoid misunderstandings and to assist in obtaining the desired information in a timely fashion to avoid delaying trial.
Rule Ten: Motions
1. As early as possible, counsel will advise the Justices and opposing counsel of the general nature of any motions, along with applicable citations. This can be accomplished using the PTIR. When use of a PTIR is not practicable, a conference by e-mail may be used for this purpose.
2. Motions shall be submitted in accordance with the trial deadlines established by the Justices at the arraignment or as set out in an approved motion for docketing. absent relief for good cause, the filing date for motions upon the court and opposing counsel shall be no later than 10 days prior to the scheduled motion hearing date, and responses to any filed motions are due to the court and opposing counsel no later than 5 days before the motion hearing date. If no such deadlines have been previously established in a case, counsel shall submit motions in advance of trial to permit the opposing side to answer. Unless waived by the Justices all motions and responses must be filed in proper format.
3. Motions and other documents will be filed with the court and served on opposing counsel. Transmitting counsel will ensure that such documents are actually received. All motions must show service on opposing counsel. Counsel may send courtesy copies of submissions, however, such transmissions are not an acceptable substitute for the service requirements mandated above nor do they satisfy the trial deadlines established by the court.
4. A copy of the pertinent portions of such reference will accompany motions or responses citing statutes, regulations, or cases other than those found in Trial Reports or the Reporters. It is the responsibility of counsel to ensure prompt delivery of all motions and/or responses as well as all supporting documents by the appropriate filing date and to confirm receipt by the judiciary.
5. Litigation of motions will involve presentation of legal and competent evidence; i.e., testimony, documentary evidence, stipulations, etc. Facts must be established upon which the Justices may make essential findings. Ordinarily, mere averments of counsel or statements of fact contained in motions are NOT sufficient to establish facts.
6. In Cases withdrawn, a notice of withdrawal will be filed with the Clerks of Court.
Rule Eleven: Continuances
1. Continuance requests shall be by written motion outside of court. The motion shall state the specific reason for the request and the earliest possible trial date. Counsel must be prepared to fully justify each request for continuance. If the accused is in pre-trial confinement, defence requests for continuances need not be signed by the accused. However, signature by the accused is encouraged and is good practice.
Rule Twelve: Situs
1. The Justices or Chief Justice shall designate the situs of the trial.
Rule Thirteen: Courtroom Security
1. The Chief Justice in Council may prescribe rules in any given case to establish courtroom security as deemed necessary.
Rule Fourteen: Spectators
1. The Chief Justice is responsible for the control of trial spectators.
2. Spectators are encouraged to attend any sessions of the trial, unless otherwise determined by the Justices.
3. The trial counsel should encourage the attendance of the public.
4. Counsel shall ensure that the Justices is advised if there is a likelihood that any spectator is to be called as a witness.
5. Spectators may enter or leave the court while the trial is in session, so long as their activity is not disruptive to the proceedings.
6. It is improper for a spectator to demonstrate agreement or disagreement with testimony or other procedures at a trial. Spectators who violate this rule may be excluded from the courtroom or, in aggravated cases, held in contempt. Counsel are responsible for advising their clients, their witnesses, and friends of the accused and counsel, of the demeanour expected of them.
7. Counsel shall refrain from conferring with spectators or other non-participants while the court is in session.
Rule Fifteen: Punctuality
1. The Justices shall be notified promptly of any delays and the reasons therefore. All parties are expected to be punctual for all matters involved in the trial of a case.
Rule Sixteen: Bailiff
1. If practicable, a bailiff shall be present at every contested trial. Trial counsel shall ensure the bailiff is thoroughly briefed as to the bailiff's responsibilities.
2. Bailiffs shall be present for all members trials.
Rule Seventeen: Court Reporters
1. Trial counsel shall verify that the court reporter has been previously sworn. Reporters who have not been previously sworn shall notify trial counsel.
2. Each time the court convenes or reconvenes, the reporter shall note in the record the presence or absence of the parties and the time at which the court convenes or reconvenes. The court reporter shall also note the time at which recesses are taken and the time of adjournment.
3. Court reporters shall ensure that the name all military parties to the trial and the name of counsel are properly noted in the record of trial.
4. The trial counsel is responsible for keeping the court reporter section apprised of the status of all docketed cases, to include but not limited to: all anticipated delays; continuances; withdrawal of charges; changes in the anticipated pleas and forum; and the need for court reporter support in unscheduled hearings.
Rule Eighteen: Consideration for Members’ Time
1. Counsel should coordinate with all parties and the Justices to avoid unnecessary "down time" for the members.
2. In all cases involving court members, the trial counsel shall obtain direction from the Justices as to when the members should arrive for trial. With advance permission of the Justices, some or all of the members may be on a standby call status.
Rule Nineteen: Voir Dire
1. The Justices determines the procedure for conducting voir dire.
2. Prior to voir dire, both counsel will provide the Justices with a written list of the full name of all witnesses. The list shall also include witnesses whose testimony will be presented by stipulation.
3. Unless directed otherwise by the Justices, all proposed voir dire questions, either to be asked en banc or individually, will be submitted in writing on the date designated by the Justices, or in the absence of such date, by assembly. Copies of proposed voir dire questions shall be served on opposing counsel. Upon specific request, the Justices may permit counsel to ask additional questions.
4. During voir dire, counsel shall not: (1) argue the case; (2) engage in efforts to indoctrinate, visit with, or establish "rapport" with members; (3) question members concerning anticipated instructions or theories of law, or members' "understanding" of various legal principles yet to be explained to them; (4) ask members what kind of findings or sentence they might return under a hypothetical set of facts; or (5) seek a pre-commitment from a member to a factual or legal proposition that is in issue.
5. The Justices will conduct the initial voir dire of the members. Counsel will then be permitted to ask the approved questions not previously asked by the Justices. All questions must be relevant to determining the qualifications of the members with regards to the trial. Where necessary and in the discretion of the Justices, counsel will be permitted to question the members individually.
6. All challenges, whether peremptory or for cause, shall be addressed to the Justices in session.
Rule Twenty: Opening Statements
1. Counsel shall confine their opening statements to what they expect the issues in the case will be and the evidence will show. Counsel will not use the opening statement to argue the case or to instruct as to the law.
2. Only one counsel per side may make opening statements.
3. Counsel may use visual aids such as charts, graphs, maps, photographs, models, or other graphic devices, but permission from the Justices for such use is necessary unless the visual aid has, outside the presence of the members, already been admitted into evidence. Counsel must allow opposing counsel to view any such materials for possible objection prior to the delivery of the argument.
Rule Twenty One: Counsel Decorum
1. Counsel's decorum in the courtroom shall be such as to provide a judicial atmosphere.
2. Counsel shall refrain from undue familiarity between themselves or in relationship to the members, Justices, or witnesses while court is in session and when otherwise in the presence of the accused.
3. Counsel should direct all argument and responsive statements to the Justices rs, as applicable, while the court is in session and shall avoid colloquy or argument towards the other party, except for perfunctory matters of courtesy.
4. When one counsel is addressing the court or examining a witness, the opposing counsel shall remain quiet, unless to make an objection.
5. Unless specifically authorized by the Chief Justice, only one counsel per side may question a witness, address the court on a motion or issue, or make opening statement or closing argument.
Rule Twenty Two: Counsel Conduct
1. Counsel shall not, during trial, state or allude to any matter that counsel has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.
2. Counsel shall not, during trial, assert any personal knowledge of the facts in issue, except when testifying as a witness.
3. Counsel shall not, during trial, assert any personal opinion as to the justness of a cause, the credibility of a witness, or the guilt or innocence of an accused; but counsel may argue, based on analysis of the evidence, for any position or conclusion with respect the matter stated therein.
4. Counsel shall not intentionally or habitually violate any established rule of procedure or evidence or these rules.
5. Counsel shall not knowingly disobey a standing order or the ruling of a court, but may take appropriate good faith action to test the validity of such rule or ruling.
6. Each time the court convenes or reconvenes, the trial counsel shall ensure that the Chief Justice has announced on the record the presence or absence of the parties (e.g., "All parties to the trial who were present when the court closed/recessed are again present (except the members)."). If any party is absent, the Justices shall be advised.
7. Counsel shall follow along in the trial guide to ensure that the Justices makes no unintentional omissions. Should counsel believe that the Justices has made such an omission, he or she is encouraged to bring it to their attention immediately upon its discovery.
Rule Twenty Three: Witnesses
1. The Bailiff shall swear each witness called to testify and shall ensure that the witness' full name is announced in court and made part of the record of trial.
2. The Oath taken by Witnesses shall be: Do you solemnly affirm that the testimony you are to give is the truth, whole, truth and nothing but the truth? The witness shall respond by stating: I do.
3. The court will cooperate with witnesses whose absence from duty or job is especially disruptive to mission accomplishment or essential services, so long as a fair, expeditious trial is not sacrificed. Counsel shall notify the Justices when such witnesses are to be called so that appropriate coordination may be accomplished.
4. Witnesses shall be instructed by counsel that, when testifying, they must not use slang expressions or profanity, except as may be required in the presentation of the case. Witnesses shall be told not to engage court members or the military judge in casual conversation.
5. While questioning the witness in trial, counsel should not direct the witness to speak directly toward the Justices or any other person in the courtroom. If necessary, a Justice may instruct a distracted or uncooperative witness as necessary.
6. Witnesses shall be treated with respect by counsel. They must not be humiliated, or otherwise abused.
7. Counsel shall ensure that their respective witnesses will be immediately available when called to testify. The fact that the government has agreed to or has been ordered to produce a witness on behalf of the defence , does not relieve the defence counsel of requirements for defence witnesses. Counsel should coordinate with each other and the Justices to reduce, whenever practicable, the amount of time a witness is required to wait prior to testifying.
Rule Twenty Four: Objections
1. Counsel initially will state only the nature and basis of objections without elaboration.
2. Only with consent of the Chief Justice.Counsel may make arguments during objections
3. Argument on objections shall be direct and succinct. Citation of authority is desired.
4. Objection or Argument for the purpose of making a speech, recapitulating testimony, or attempting to guide a witness, is prohibited.
5. After the Chief Justice rules on an objection, counsel may only make comment or further argument with the express permission.
Rule Twenty Five: Stipulations
1. If a motion, or any other issue, involves only a dispute between the parties as to the law or any ultimate question of fact, and does not involve the underlying facts, counsel should endeavour to enter into, and prepare, prior to trial, stipulations of fact or of testimony covering those matters.
2. Stipulations may be made for the limited purpose of obtaining a ruling on a motion or other pleading.
3. Written stipulations of fact shall be marked as a trial exhibit and, in a members trial, presented to the members. Written stipulations of expected testimony shall be marked as an appellate exhibit and, in a members trial, presented to members.
Rule Twenty Six: Offers of Proof
1. When offers of proof are expected to be presented on motions or objections, counsel should inform opposing counsel and endeavor to reach agreement on the content of the offer of proof before presentation.
Rule Twenty Seven: Judicial Notice
1. Counsel will advise the Justices and opposing counsel as soon as possible, preferably before trial, of any intended requests for judicial notice.
2. Prior to trial, the trial counsel shall have marked, as appellate exhibits in guilty plea cases or as prosecution exhibits in contested cases, readable copies of all statutes alleged to have been violated. Trial counsel will also provide advance copies to the defence counsel and to the Justices.
Rule Twenty Eight: Trial Exhibits
1. Prosecution exhibits will be numbered consecutively with Arabic numerals, and defence exhibits will be identified by capital letters.
2. Prosecution exhibits intended to be introduced at trial should be marked consecutively: "Prosecution Exhibit 1 for identification" etc., or with a suitable abbreviation.
3. Defence exhibits intended to be introduced at trial should be marked consecutively: "Defence Exhibit A for identification" etc., or with a suitable abbreviation.
4. In formulating questions to witnesses concerning an exhibit, counsel will refer to the exhibit by its exhibit number or letter.
5. If an exhibit is not compatible for inclusion in the record of trial, proffering counsel should prepare a substitution before trial and shall ask the court's permission to make the substitution at the first point the exhibit for identification is brought to the court's attention. Such substitution for an item of real evidence shall include an accurate and detailed description, either pictorially or in writing,
6. Exhibits shall be marked by the court reporter, not the counsel, in the anticipated order of presentation before the time trial is scheduled to commence or during recesses.
7. The proponent of documentary evidence should normally arrange to have a copy of the exhibit on the date of trial for each member of the court as well as a copy for the Justices.
Rule Twenty Nine: Appellate Exhibits
1. Appellate exhibits will be numbered consecutively with Roman numerals at the direction of the Chief Justice.
Rule Thirty: Instructions
1. Trial counsel should make appropriate recommendations as to specific routine instructions that the Justices should provide to the members in order to ensure that no required instructions are inadvertently omitted.
2. If counsel desire that the members be given special instructions, modifications of standard instructions, or a summarization of the evidence, such proposals shall be submitted to the Justices and opposing counsel in a timely manner.
Rule Thirty One: Closing Arguments
1. Arguments should be limited to matters in evidence and all inferences fairly and reasonably to be drawn from the evidence, together with reference to matters of common and everyday knowledge. Counsel shall not assert a personal belief in the justice of his or her cause or in the guilt or innocence of the accused, nor may counsel personally vouch for the credibility or lack of credibility of witnesses.
2. Only one counsel may argue for each side. The Chief Justice in Council may limit the trial counsel to one argument on the merits in judge alone cases. If so, the trial counsel may elect whether to argue first or last.
Rule Thirty Two: Accused’s Unsworn Statement
1. Unsworn statements will not be made from the witness stand. They will be made from the counsel table
Rule Thirty Three: Record of Trial
1. A complete and accurate record of the proceedings is needed to protect the rights of all parties. During the course of the trial, counsel will ensure that uncommon names, places, and things are spelled out on the record, and that descriptions are clear and unambiguous.
2. At the conclusion of the trial, defence counsel will indicate who will represent the accused in post-trial matters. The accused may include such decisions in the written acknowledgement of appellate rights.
3. Whenever practicable, trial counsel shall read the record of trial before it is submitted to the Justices for authentication and ensure that the court reporter makes any necessary corrections.
4. The defence counsel shall be permitted to review the record of trial prior to it being submitted to the Justices for authentication. The review by defence counsel, or lack thereof, must be documented in the record before the Justices will authenticate the record.
Rule Thirty Four: Court Filings / Document Size / Type Font
1. All documents filed with the court shall be double spaced in a 12-point font.
Rule One: Applicability
1. These rules apply to any and all trials of the Royal Hanover High Court in which the parties are under the jurisdiction of the Kingdom of Hanover. Counsel, as officers of the court, shall follow these rules, unless doing so would deprive the client of effective representation or would interfere with the exercise of an accused’s right to due process. Reporters, Judges, Clerks, Bailiffs, and all others involved with courtroom procedure will follow these rules where they apply.
2. Any counsel, who fails to comply with these rules, or orders of the court maybe required to explain his or her reasons for non-compliance on the record, or in writing for inclusion in the record of trial as an appellate exhibit.
3. With regard to non-compliance with these rules, or orders of the court, a judge may, as appropriate:
I. Issue an admonishment on the record.
II. Remedy the effect of non-compliance through a court order or continuance.
III. Forward information about the matter to a military counsel's commanding officer or officer-in-charge.
IV. Forward information about the matter to a civilian counsel's bar.
V. Forward a complaint for processing.
VI. Proceed with action for "contempt", or:
VII. Fashion any other appropriate remedy.
Rule Two: Purpose
1. These rules are intended to facilitate a just determination of justice issues and to enhance the orderly administration of justice.
2. Operating within our adversarial system, the goal of a trial is the search for the truth. To provide the best opportunity for justice to be done, a trial should have an efficient presentation of evidence and arguments to the trier of fact in a setting that promotes a sense of the importance of the outcome.
3. Counsel for both sides are expected to strive to conduct an exemplary trial. In an exemplary trial, trial time is regarded as precious. The members are rarely sent out for extensive arguments of counsel on points of law, as these are thought out, presented to the court, and decided upon well ahead of the arrival of the members. Counsel are able to frame their opening statements by properly balancing fact and emotion. Direct examination educates the members step-by-step about the essential facts and circumstances of the case. Exhibits are handled expeditiously, and demonstrative evidence is planned and prepared well in advance. Objections are ruled upon promptly without excessive argument and are limited in numbers. Succeeding witnesses are presented without the need for recesses. Cross examination by counsel is focused and succinct and reflects that the counsel questioning the witness has fully investigated the issues. Everyone has the sense that counsel know exactly where they are going. Closing arguments stick to the evidence and do not invite objection. Counsel are well prepared with request for rulings or member’s instructions far in advance of closing arguments. Counsel do not vie to have the last word.
Rule Three: Construction
1. These rules shall be constructed to ensure simplicity in procedure, fairness in administration, and efficiency of operation, and the timely disposition of trial They shall be interpreted so as to provide the maximum adaptability to the conditions under which the Prosecutor Generals offices must provide their operational missions. Non-compliance with these rules will not create a right in or remedy for either party to a trial, but adherence to these rules will relate to the professionalism of the individuals involved. Arbiters of these rules will be the Justices of the Royal Hanover High Court.
2. If any rule herein conflicts with case law, statute, any constitutional provision, or any service regulation, then that rule shall have no effect.
Rule Four: Information Regarding Languishing Cases
1. Trial counsel shall provide to the Justices all information regarding any referred trial which is not moving to trial with all deliberate speed.
Rule Five: Referred Charges
1. Trial counsel shall provide Courts with a copy of referred charges and corresponding convening orders as soon after receipt as possible.
2. Defence counsel will examine the personal data on the charge sheet, determine its accuracy, and notify the trial counsel and the Justices of any necessary corrections, additions or deletions.
3. All changes to the charge sheet shall be initialled and dated by the trial counsel or other representative of the convening authority.
Rule Six: Pretrial Information Report (PTIR) and Docketing Requests
1. Prosecution counsel shall initiate a Pre-trial Information Report (PTIR) for each referred case. This will include a copy of the referred charge sheet as enclosure one, and a copy of the convening order for the trial as enclosure two, if not previously provided. The first PTIR submitted on a referred case shall also include proposed trial dates and filing deadlines. With the PTIR, or subsequent PTIRs, trial counsel will include copies of the relevant portions of any law, ordinance, regulation or other legal statute alleged to have been violated, attached as enclosure (3). Written motions are also required to be submitted with the PTIR. After completing all applicable portions of the report, trial counsel shall forward it to defence counsel and the Justices with a copy to trial counsel. If unusual or compelling circumstances render it impracticable to use the PTIR, defence counsel should advise trial counsel, as soon as possible, but at least 24 hours before trial, of pleas and whether the accused intends to request trial by Justices alone or by members.
2. When a docketing request is submitted, a completed PTIR must be submitted for each case to be docketed. This requirement also applies to cases that have been judicially docketed by the Chief Justice at prior to trial scheduled through the use of a motion for docketing, as well as through written continuance requests. Both counsel will sign the PTIR. However, if for any reason, the defence counsel or trial counsel is not available when the PTIR is due, the senior Prosecutor of the Prosecutor Generals Office shall complete the PTIR, explain the absence of counsel, attach the required documents, and submit the report with the docketing request. The trial counsel should ordinarily prepare and submit the report to the defence counsel prior to any expected absence, even if the case is not to be docketed the next week. All anticipated motions, including multiplicity and illegal restraint, must be listed on the PTIR. If the pleas are mixed, or by exception and substitution, a detailed list of pleas shall be included in the PTIR. This block shall also state if the Government will or will not contest the offences or the excepted language to which the accused pled not guilty. Counsel signatures certify the accuracy of the information contained in the PTIR.
3. Either party may request an hearing of a referred trial for any reason, using the docketing procedures listed below. Defence counsel or Trial counsel may also request conferences at any time and for any reason.
4. In the proposed trial dates and filing deadlines for a case, counsel shall establish a motions filing deadline that is no less than 10 days in advance of the date requested of the trial to litigate motions. The deadline for filing response to any motions in a case shall be no less than 5 days in advance of the session. Exceptions to this rule require the Chief Justice in Councils approval.
5. Counsel can best estimate the length of proposed sessions or trial. However, ordinarily, contested members cases should be docketed for at least three days. Those estimates include a period for sentencing, should it become necessary. The litigation of motions should ordinarily be scheduled for a session well in advance of any session with court members. Counsel should request session for any motion for witness production sufficiently before trial to allow for the presence of the witness on the docketed trial date. Counsel should request a session well ahead of trial for any motions that the resolution of which may adversely affect the docketed trial date.
6. If, at the time the docketing request is submitted, counsel are negotiating, but have not yet concluded, a pre-trial agreement, then an session should be requested with a notation on the PTIR that a pre-trial agreement is anticipated. The case should not be docketed as a contested, members case. Proposed pleas will be detailed on the PTIR. Pre-trial consultation with the Justices conference is encouraged. If pleas will be by exceptions and substitutions, the exact language of such pleas shall be included in enclosure 3 of the PTIR.
7. Charges not referred to courts-martial and cases without PTIRs with all of the required enclosures will not be docketed without good cause and approval by the Justices.
8. Cases that were not included in the docketing request will be added to the court docket only for good cause approved by the Justices. These so-called "walk-ins" or "walk-ons" are strongly discouraged. Such requests will not be approved when the sole purpose is to arraign an accused and establish trial dates and filing deadlines for a case not involving pre-trial confinement or speedy trial concerns. Trial and/or defence counsel promises to convening or other authorities that cases will be tried immediately (as an inducement for pre-trial agreements) will not constitute good cause for a "walk-in."
9. At the earliest opportunity, trial or defence counsel must notify the Justices of any changes to the PTIR (including withdrawal of, or amendments to charges, new motions, forum change, change in pleas, etc.) and requests to change the time, date, or location of the trial.
10. The trial deadlines established at an arraignment are not optional. Counsel will adhere to the deadlines and may be called upon to address, on the record, any failure to abide by them. A counsel who fails to meet deadlines, not only tarnishes his or her own reputation with the court, but also unfairly impacts opposing counsel’s ability to properly prepare for a case (i.e. to respond to a motion etc), which in turn can lead to unnecessary delays in a case.
11. Counsel shall submit matters in accordance with the court-established deadlines. These matters include witness lists, exhibit lists, proposed voir dire questions, requests for instructions etc. Notice of pleas and forum shall be submitted in accordance with attachment (5). Counsel who fail to submit matters in a timely manner, may in the discretion of the military judge, forfeit the opportunity to conduct general voir dire of the members.
Rule Seven: Ex Parte Communications with the Justices
1. Ex parte communications with the Justices concerning a case that is pending is prohibited, except for routine administrative matters and as otherwise provided by law.
2. Routine administrative matters include docketing and logistical matters, including but not limited to pleas, forum, and number of or difficulty with witnesses that affect the time, location, and length of court sessions.
3. The prohibition against ex parte communications extends to electronic mail. Counsel shall include opposing counsel as a “copy” addressee on all electronic mail sent to th Justices about case related matters, regardless of whether it is merely administrative in nature.
4. When appropriate, military judges will conduct critiques or offer suggestions regarding counsel performance in courts-martial to improve the administration of justice. These sessions shall be conducted with both the trial and defence counsel present, or in group sessions.
Rule Eight: Conferences
1. Conferences, between the Justices and trial and defense counsel are authorized. The presence of the accused is neither required nor prohibited. Conferences may be held before or during trial by e-mail. They are used to inform the Justices of unusual issues that are likely to affect the duration, progress, or disposition of a case, and to expeditiously resolve matters on which the parties can agree. Such conferences shall not be used to litigate or decide contested issues.
2. In contested members cases, counsel should seek, and the Justice should normally schedule, a trial management conference approximately one week prior to trial on the merits.
Rule Nine: Discovery
1. Counsel shall promptly comply with all law regarding discovery. Counsel shall not make a frivolous discovery request or fail to make a diligent effort to comply with a legal and proper discovery request by an opposing party. Gamesmanship in the discovery process will not be tolerated.
2. Notwithstanding "open discovery" discovery requests should be as specific as possible to avoid misunderstandings and to assist in obtaining the desired information in a timely fashion to avoid delaying trial.
Rule Ten: Motions
1. As early as possible, counsel will advise the Justices and opposing counsel of the general nature of any motions, along with applicable citations. This can be accomplished using the PTIR. When use of a PTIR is not practicable, a conference by e-mail may be used for this purpose.
2. Motions shall be submitted in accordance with the trial deadlines established by the Justices at the arraignment or as set out in an approved motion for docketing. absent relief for good cause, the filing date for motions upon the court and opposing counsel shall be no later than 10 days prior to the scheduled motion hearing date, and responses to any filed motions are due to the court and opposing counsel no later than 5 days before the motion hearing date. If no such deadlines have been previously established in a case, counsel shall submit motions in advance of trial to permit the opposing side to answer. Unless waived by the Justices all motions and responses must be filed in proper format.
3. Motions and other documents will be filed with the court and served on opposing counsel. Transmitting counsel will ensure that such documents are actually received. All motions must show service on opposing counsel. Counsel may send courtesy copies of submissions, however, such transmissions are not an acceptable substitute for the service requirements mandated above nor do they satisfy the trial deadlines established by the court.
4. A copy of the pertinent portions of such reference will accompany motions or responses citing statutes, regulations, or cases other than those found in Trial Reports or the Reporters. It is the responsibility of counsel to ensure prompt delivery of all motions and/or responses as well as all supporting documents by the appropriate filing date and to confirm receipt by the judiciary.
5. Litigation of motions will involve presentation of legal and competent evidence; i.e., testimony, documentary evidence, stipulations, etc. Facts must be established upon which the Justices may make essential findings. Ordinarily, mere averments of counsel or statements of fact contained in motions are NOT sufficient to establish facts.
6. In Cases withdrawn, a notice of withdrawal will be filed with the Clerks of Court.
Rule Eleven: Continuances
1. Continuance requests shall be by written motion outside of court. The motion shall state the specific reason for the request and the earliest possible trial date. Counsel must be prepared to fully justify each request for continuance. If the accused is in pre-trial confinement, defence requests for continuances need not be signed by the accused. However, signature by the accused is encouraged and is good practice.
Rule Twelve: Situs
1. The Justices or Chief Justice shall designate the situs of the trial.
Rule Thirteen: Courtroom Security
1. The Chief Justice in Council may prescribe rules in any given case to establish courtroom security as deemed necessary.
Rule Fourteen: Spectators
1. The Chief Justice is responsible for the control of trial spectators.
2. Spectators are encouraged to attend any sessions of the trial, unless otherwise determined by the Justices.
3. The trial counsel should encourage the attendance of the public.
4. Counsel shall ensure that the Justices is advised if there is a likelihood that any spectator is to be called as a witness.
5. Spectators may enter or leave the court while the trial is in session, so long as their activity is not disruptive to the proceedings.
6. It is improper for a spectator to demonstrate agreement or disagreement with testimony or other procedures at a trial. Spectators who violate this rule may be excluded from the courtroom or, in aggravated cases, held in contempt. Counsel are responsible for advising their clients, their witnesses, and friends of the accused and counsel, of the demeanour expected of them.
7. Counsel shall refrain from conferring with spectators or other non-participants while the court is in session.
Rule Fifteen: Punctuality
1. The Justices shall be notified promptly of any delays and the reasons therefore. All parties are expected to be punctual for all matters involved in the trial of a case.
Rule Sixteen: Bailiff
1. If practicable, a bailiff shall be present at every contested trial. Trial counsel shall ensure the bailiff is thoroughly briefed as to the bailiff's responsibilities.
2. Bailiffs shall be present for all members trials.
Rule Seventeen: Court Reporters
1. Trial counsel shall verify that the court reporter has been previously sworn. Reporters who have not been previously sworn shall notify trial counsel.
2. Each time the court convenes or reconvenes, the reporter shall note in the record the presence or absence of the parties and the time at which the court convenes or reconvenes. The court reporter shall also note the time at which recesses are taken and the time of adjournment.
3. Court reporters shall ensure that the name all military parties to the trial and the name of counsel are properly noted in the record of trial.
4. The trial counsel is responsible for keeping the court reporter section apprised of the status of all docketed cases, to include but not limited to: all anticipated delays; continuances; withdrawal of charges; changes in the anticipated pleas and forum; and the need for court reporter support in unscheduled hearings.
Rule Eighteen: Consideration for Members’ Time
1. Counsel should coordinate with all parties and the Justices to avoid unnecessary "down time" for the members.
2. In all cases involving court members, the trial counsel shall obtain direction from the Justices as to when the members should arrive for trial. With advance permission of the Justices, some or all of the members may be on a standby call status.
Rule Nineteen: Voir Dire
1. The Justices determines the procedure for conducting voir dire.
2. Prior to voir dire, both counsel will provide the Justices with a written list of the full name of all witnesses. The list shall also include witnesses whose testimony will be presented by stipulation.
3. Unless directed otherwise by the Justices, all proposed voir dire questions, either to be asked en banc or individually, will be submitted in writing on the date designated by the Justices, or in the absence of such date, by assembly. Copies of proposed voir dire questions shall be served on opposing counsel. Upon specific request, the Justices may permit counsel to ask additional questions.
4. During voir dire, counsel shall not: (1) argue the case; (2) engage in efforts to indoctrinate, visit with, or establish "rapport" with members; (3) question members concerning anticipated instructions or theories of law, or members' "understanding" of various legal principles yet to be explained to them; (4) ask members what kind of findings or sentence they might return under a hypothetical set of facts; or (5) seek a pre-commitment from a member to a factual or legal proposition that is in issue.
5. The Justices will conduct the initial voir dire of the members. Counsel will then be permitted to ask the approved questions not previously asked by the Justices. All questions must be relevant to determining the qualifications of the members with regards to the trial. Where necessary and in the discretion of the Justices, counsel will be permitted to question the members individually.
6. All challenges, whether peremptory or for cause, shall be addressed to the Justices in session.
Rule Twenty: Opening Statements
1. Counsel shall confine their opening statements to what they expect the issues in the case will be and the evidence will show. Counsel will not use the opening statement to argue the case or to instruct as to the law.
2. Only one counsel per side may make opening statements.
3. Counsel may use visual aids such as charts, graphs, maps, photographs, models, or other graphic devices, but permission from the Justices for such use is necessary unless the visual aid has, outside the presence of the members, already been admitted into evidence. Counsel must allow opposing counsel to view any such materials for possible objection prior to the delivery of the argument.
Rule Twenty One: Counsel Decorum
1. Counsel's decorum in the courtroom shall be such as to provide a judicial atmosphere.
2. Counsel shall refrain from undue familiarity between themselves or in relationship to the members, Justices, or witnesses while court is in session and when otherwise in the presence of the accused.
3. Counsel should direct all argument and responsive statements to the Justices rs, as applicable, while the court is in session and shall avoid colloquy or argument towards the other party, except for perfunctory matters of courtesy.
4. When one counsel is addressing the court or examining a witness, the opposing counsel shall remain quiet, unless to make an objection.
5. Unless specifically authorized by the Chief Justice, only one counsel per side may question a witness, address the court on a motion or issue, or make opening statement or closing argument.
Rule Twenty Two: Counsel Conduct
1. Counsel shall not, during trial, state or allude to any matter that counsel has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.
2. Counsel shall not, during trial, assert any personal knowledge of the facts in issue, except when testifying as a witness.
3. Counsel shall not, during trial, assert any personal opinion as to the justness of a cause, the credibility of a witness, or the guilt or innocence of an accused; but counsel may argue, based on analysis of the evidence, for any position or conclusion with respect the matter stated therein.
4. Counsel shall not intentionally or habitually violate any established rule of procedure or evidence or these rules.
5. Counsel shall not knowingly disobey a standing order or the ruling of a court, but may take appropriate good faith action to test the validity of such rule or ruling.
6. Each time the court convenes or reconvenes, the trial counsel shall ensure that the Chief Justice has announced on the record the presence or absence of the parties (e.g., "All parties to the trial who were present when the court closed/recessed are again present (except the members)."). If any party is absent, the Justices shall be advised.
7. Counsel shall follow along in the trial guide to ensure that the Justices makes no unintentional omissions. Should counsel believe that the Justices has made such an omission, he or she is encouraged to bring it to their attention immediately upon its discovery.
Rule Twenty Three: Witnesses
1. The Bailiff shall swear each witness called to testify and shall ensure that the witness' full name is announced in court and made part of the record of trial.
2. The Oath taken by Witnesses shall be: Do you solemnly affirm that the testimony you are to give is the truth, whole, truth and nothing but the truth? The witness shall respond by stating: I do.
3. The court will cooperate with witnesses whose absence from duty or job is especially disruptive to mission accomplishment or essential services, so long as a fair, expeditious trial is not sacrificed. Counsel shall notify the Justices when such witnesses are to be called so that appropriate coordination may be accomplished.
4. Witnesses shall be instructed by counsel that, when testifying, they must not use slang expressions or profanity, except as may be required in the presentation of the case. Witnesses shall be told not to engage court members or the military judge in casual conversation.
5. While questioning the witness in trial, counsel should not direct the witness to speak directly toward the Justices or any other person in the courtroom. If necessary, a Justice may instruct a distracted or uncooperative witness as necessary.
6. Witnesses shall be treated with respect by counsel. They must not be humiliated, or otherwise abused.
7. Counsel shall ensure that their respective witnesses will be immediately available when called to testify. The fact that the government has agreed to or has been ordered to produce a witness on behalf of the defence , does not relieve the defence counsel of requirements for defence witnesses. Counsel should coordinate with each other and the Justices to reduce, whenever practicable, the amount of time a witness is required to wait prior to testifying.
Rule Twenty Four: Objections
1. Counsel initially will state only the nature and basis of objections without elaboration.
2. Only with consent of the Chief Justice.Counsel may make arguments during objections
3. Argument on objections shall be direct and succinct. Citation of authority is desired.
4. Objection or Argument for the purpose of making a speech, recapitulating testimony, or attempting to guide a witness, is prohibited.
5. After the Chief Justice rules on an objection, counsel may only make comment or further argument with the express permission.
Rule Twenty Five: Stipulations
1. If a motion, or any other issue, involves only a dispute between the parties as to the law or any ultimate question of fact, and does not involve the underlying facts, counsel should endeavour to enter into, and prepare, prior to trial, stipulations of fact or of testimony covering those matters.
2. Stipulations may be made for the limited purpose of obtaining a ruling on a motion or other pleading.
3. Written stipulations of fact shall be marked as a trial exhibit and, in a members trial, presented to the members. Written stipulations of expected testimony shall be marked as an appellate exhibit and, in a members trial, presented to members.
Rule Twenty Six: Offers of Proof
1. When offers of proof are expected to be presented on motions or objections, counsel should inform opposing counsel and endeavor to reach agreement on the content of the offer of proof before presentation.
Rule Twenty Seven: Judicial Notice
1. Counsel will advise the Justices and opposing counsel as soon as possible, preferably before trial, of any intended requests for judicial notice.
2. Prior to trial, the trial counsel shall have marked, as appellate exhibits in guilty plea cases or as prosecution exhibits in contested cases, readable copies of all statutes alleged to have been violated. Trial counsel will also provide advance copies to the defence counsel and to the Justices.
Rule Twenty Eight: Trial Exhibits
1. Prosecution exhibits will be numbered consecutively with Arabic numerals, and defence exhibits will be identified by capital letters.
2. Prosecution exhibits intended to be introduced at trial should be marked consecutively: "Prosecution Exhibit 1 for identification" etc., or with a suitable abbreviation.
3. Defence exhibits intended to be introduced at trial should be marked consecutively: "Defence Exhibit A for identification" etc., or with a suitable abbreviation.
4. In formulating questions to witnesses concerning an exhibit, counsel will refer to the exhibit by its exhibit number or letter.
5. If an exhibit is not compatible for inclusion in the record of trial, proffering counsel should prepare a substitution before trial and shall ask the court's permission to make the substitution at the first point the exhibit for identification is brought to the court's attention. Such substitution for an item of real evidence shall include an accurate and detailed description, either pictorially or in writing,
6. Exhibits shall be marked by the court reporter, not the counsel, in the anticipated order of presentation before the time trial is scheduled to commence or during recesses.
7. The proponent of documentary evidence should normally arrange to have a copy of the exhibit on the date of trial for each member of the court as well as a copy for the Justices.
Rule Twenty Nine: Appellate Exhibits
1. Appellate exhibits will be numbered consecutively with Roman numerals at the direction of the Chief Justice.
Rule Thirty: Instructions
1. Trial counsel should make appropriate recommendations as to specific routine instructions that the Justices should provide to the members in order to ensure that no required instructions are inadvertently omitted.
2. If counsel desire that the members be given special instructions, modifications of standard instructions, or a summarization of the evidence, such proposals shall be submitted to the Justices and opposing counsel in a timely manner.
Rule Thirty One: Closing Arguments
1. Arguments should be limited to matters in evidence and all inferences fairly and reasonably to be drawn from the evidence, together with reference to matters of common and everyday knowledge. Counsel shall not assert a personal belief in the justice of his or her cause or in the guilt or innocence of the accused, nor may counsel personally vouch for the credibility or lack of credibility of witnesses.
2. Only one counsel may argue for each side. The Chief Justice in Council may limit the trial counsel to one argument on the merits in judge alone cases. If so, the trial counsel may elect whether to argue first or last.
Rule Thirty Two: Accused’s Unsworn Statement
1. Unsworn statements will not be made from the witness stand. They will be made from the counsel table
Rule Thirty Three: Record of Trial
1. A complete and accurate record of the proceedings is needed to protect the rights of all parties. During the course of the trial, counsel will ensure that uncommon names, places, and things are spelled out on the record, and that descriptions are clear and unambiguous.
2. At the conclusion of the trial, defence counsel will indicate who will represent the accused in post-trial matters. The accused may include such decisions in the written acknowledgement of appellate rights.
3. Whenever practicable, trial counsel shall read the record of trial before it is submitted to the Justices for authentication and ensure that the court reporter makes any necessary corrections.
4. The defence counsel shall be permitted to review the record of trial prior to it being submitted to the Justices for authentication. The review by defence counsel, or lack thereof, must be documented in the record before the Justices will authenticate the record.
Rule Thirty Four: Court Filings / Document Size / Type Font
1. All documents filed with the court shall be double spaced in a 12-point font.