Before the evidence is examined at a court-martial trial, what may the presiding judge have the military prosecutor and defence counsel say, and what may they not say?
General information · Not legal advice
Material to check
In a practice file for this exercise, we read the hearing record to see whether the presiding judge called for statements before the evidence examination began, the list of evidence each side had filed, and any written statement of claims and proof plans handed in, since the restriction turns on whether the material behind a statement cannot be evidence, or is not intended to be applied for as evidence, and stating the matter risks giving the military court a preconception or bias about the case.
These are types of material to look for, not evidence already verified by PRO SE.
Where readings differ
One reading takes the provision as a power of the presiding judge rather than a duty: before examining evidence, the judge may have the military prosecutor and defence counsel state their claims and proof plans relating to the proof of the charged facts, and the record should show which of them spoke and on what material.
Another reading rests on the proviso: where a matter is based on material that cannot be evidence, or on material the speaker has no intention to apply for as evidence, and it risks giving the military court a preconception or bias about the case, that matter must not be stated at all, so the provision leaves open how a court draws the line between a proof plan and a matter carrying that risk.
Your judgment
When a statement of proof plans mixes facts each side can prove with material that will never be evidence, how should the record show which parts crossed the line?
PRO SE does not make this decision or keep a case record on this public site.When to reconsider
We look at this again if the provision is amended to change what may be stated before the evidence examination, or if a court decision explains what creates a risk of preconception or bias within the meaning of the proviso.