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Article 46, UCMJ; RCM 921(b);
RCM 801(c) and Discussion. See also United States v. Story, No. 20061014 (A. Ct. Crim. App. Dec. 2, 2009) (unpublished). During the accused’s trial, the members were on a two-hour break after both sides had rested but before closing arguments and instructions. When the panel
returned, a member asked to call an additional witness. The military judge responded, “The answer to that is, you’ve heard all the evidence in this case.” The ACCA held the Joint Service Comm. on Military Justice military judge erred:

1. R.C.M. 921(b) expressly allows the members to “request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced” though the rule grants the military judge latitude “in the exercise of
discretion” to grant or deny such request.

2. R.C.M. 801(c) similarly provides: “The court-martial may act to obtain evidence in
addition to that presented by the parties. The right of the members to have additional
evidence obtained is subject to an interlocutory ruling by the military judge.” The
Discussion to R.C.M. 801(c) notes the members may request a witness be recalled or that
a “new witness be summoned.”

3. M.R.E. 614(a) also notes the military judge may call (or recall) witnesses “at the
request of the members.”

4. Lampani factors. In United States v. Lampani, 14 M.J. 22, 26 (C.M.A. 1982), the
COMA provided a non-exclusive list of factors a military judge must consider before
denying a member’s request for additional evidence: “Difficulty in obtaining witnesses
and concomitant delay; the materiality of the testimony that a witness could produce; the
likelihood that the testimony sought might be subject to a claim of privilege; and the
objections of the parties to reopening the evidence are among the factors trial judge must
consider.” In this case, the military judge did not consider these factors (or any other
factors) on the record, which was an abuse of discretion.

5. See also United States v. Lents, 32 M.J. 636 (A.C.M.R. 1991). Court member
questions were essentially a request to call witnesses. Court members may request
witnesses be called or recalled. The military judge must weigh difficulty, delay, and
materiality; consider whether a privilege exists; and whether the parties object; United
States v. Lampani
, 14 M.J. 22 (C.M.A. 1982) (even after deliberations have begun
members may request additional evidence).

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