Page 292 - Trump Executive Orders 2017-2021

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