“Presence” Required

Overview of the “presence” required of military judges:

, 44 M.J. 726 (A. Ct. Crim. App. 1996), aff’d, 49 M.J. 260 (C.A.A.F. 1998).

The physical absence of the military judge at a pretrial proceeding does not deprive an accused of the structural due process protections created by Articles 26 and 39, UCMJ, and RCM 803, 804, and 805. The military judge held arraignment proceedings by speakerphone. The military judge was at Fort Stewart while the accused, DC and TC were in a courtroom at Fort Jackson. Military judge advised the accused of all rights and the accused consented to the speakerphone procedure. The military judge was not “present” but the accused’s due process rights were not violated. The speakerphone procedure lasted for just twelve minutes of a seven hour trial and the judge was physically present for the remainder of the trial. Note, RCM 804(b) has since been amended to allow for “the use of audiovisual technology” for Article 39(a) sessions, subject to authorization by the applicable Service Secretary.

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