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Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents   9995


                 on each challenge. The burden of establishing that grounds for a challenge exist is upon the party
                 making the challenge. A member successfully challenged shall be excused.
                    (4)  Waiver.  The grounds for challenge in subparagraph (f)(l )(A) of this rule may not be
                 waived. Notwithstanding the absence  of a  challenge  or waiver of a  challenge by the parties,
                 the military judge may, in the interest of justice, excuse a member against whom a challenge for
                 cause would lie. When a challenge for cause has been denied, the successful use of a
                 peremptory challenge by either party, excusing the challenged member from further
                 patticipation in the court-martial, shall  preclude further consideration of the challenge of that
                 excused member upon later review. Further, failure by the challenging party to exercise a
                 peremptory challenge against any member shall constitute waiver of further consideration of the
                 challenge upon later review.
                    (5) Following the exercise of challenges for cause, if any, and prior to the exercise of
                 peremptory challenges under subsection (g) of this rule, the military judge, or a designee
                 thereof, shall randomly assign numbers to the remaining members for purposes of impaneling
                 members in accordance with R.C.M. 912A.
                 (g) Peremptory challenges.
                    (1) Procedure. Each party may challenge one member peremptorily. Any member so
                 challenged shall be excused. No party may be required to exercise a peremptory challenge before
                 the examination of members and determination of any challenges for cause has been completed.
                 Ordinarily trial  counsel shall enter any peremptory challenge before the defense.
                    (2) Waiver.  Failure to exercise a peremptory challenge when properly called upon to do so
                 shall  waive the right to make such a challenge. The military judge may, for good cause shown,
                 grant relief from the waiver, but a peremptory challenge may not be made after the presentation
                 of evidence before the members has begun. However, nothing in this subsection shall bar the
                 exercise of a previously unexercised peremptory challenge against a member newly detailed
                 under R.C.M. 505(c)(2)(B), even if presentation of evidence on the merits has begun.
                 (h) Definitions.
                    (1) Witness.  For purposes of this  rule, "witness" includes  one who testifies  at  a  court-
                 martial  and anyone whose declaration is received  in evidence for any purpose,  including
                 written declarations  made by affidavit or otherwise.
                    (2) Preliminaty hearing officer.  For purposes  of this rule,  "preliminary hearing officer"
                 includes any person  who has examined charges under R.C.M.  405  and any  person  who  was
                 counsel  for  a  member of a  court  of inquiry,  or otherwise  personally has  conducted  an
                 investigation  of the  general  matter involving the offenses charged.

                 Rule 912A. Impaneling members and alternate members
                 (a) In general. After challenges for cause and peremptory challenges are exercised, the
                 military judge of a general or special court-martial with members shall impanel the members,
                 and, if authorized by the convening authority, alternate members, in accordance with the
                 following numerical requirements:
                    (1) Capital cases.  In a general court-martial in which the charges were referred with a
                 special instruction that the case be tried as a capital case, the number of members impaneled,
                 subject to paragraph (4) of this subsection, shall  be twelve.
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                    (2) General courts-martial. In a general court-martial other than as described in paragraph
                 (1) of this subsection, the number of members impaneled, subject to paragraph (4) of this
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