Rule 605. The military judge

  • militarydefenselawyers308Rule 605. Competency of military judge as witness
  1. The military judge presiding at the court-martial may not testify in that court-martial as a witness. No objection need be made to preserve the point.
  2. This rule does not preclude the military judge from placing on the record matters concerning docketing of the case.
  1. United States v. Howard, 33 M.J. 596 (A.C.M.R. 1991). Without any supporting evidence at trial, the military judge used his own specialized knowledge of drug use in Germany to conclude the accused used hashish instead of leaf marijuana, how a pipe was used in the process, and that the charged offense was not the
    accused’s first use of marijuana. In doing so, the judge became a witness, was
    disqualified, and all actions from then on were void.
  2. The rule is an exception to Rule 103 waiver rule. It does not apply to:
    1. Subsequent proceedings concerning trial presided over; e.g., limited
      rehearing such as those ordered pursuant to United States v. Dubay, 37
      C.M.R. 411 (1967).
    2. Judicial notice under Rule 201.