Testimony at a court-martial, as in civilian trials, normally proceeds through question and answer. Counsel asks a question, the witness answers, and opposing counsel can object to questions and move to strike improper answers. Narrative testimony, by contrast, means the witness speaks at length in his own words without being guided question by question. For an accused service member, the question of whether he may testify in narrative form does not have a single yes-or-no answer. It depends on why the narrative format is being used and on the discretion of the military judge.
The default is question and answer for good reasons
The question-and-answer format is not an empty formality. It allows the military judge to control the proceedings, keeps the witness focused on relevant and admissible matters, and gives the opposing party a chance to object before inadmissible or improper testimony reaches the panel. The Military Rules of Evidence give the military judge broad authority to control the mode and order of examining witnesses and presenting evidence so that the testimony is effective for ascertaining the truth, avoids wasting time, and protects witnesses. A free-flowing narrative bypasses much of that control, which is why courts generally prefer the structured format.
The military judge has discretion to permit narrative testimony
Within that framework, a military judge has discretion to allow some narrative testimony when it serves the search for truth and does not invite inadmissible material. Witnesses are sometimes permitted to describe events in their own words rather than through a rigid series of questions, particularly where a continuous account is clearer or more natural. An accused who testifies is treated as a witness for these purposes and is subject to the same rules on the mode of examination. So as a matter of trial management, a judge can permit an accused to give portions of his testimony in narrative form. There is no rule that forbids it outright, and there is no rule that guarantees it as a matter of right. It is committed to the judge’s control of the courtroom.
The narrative form has a special significance when a client intends to testify falsely
The phrase “narrative testimony” carries a particular meaning in the law of defense ethics, and that meaning is the reason the topic arises so often in the context of an accused’s own testimony. The leading authority is the Supreme Court’s decision in Nix v. Whiteside, 475 U.S. 157 (1986). In that case the Court held that a defense attorney does not violate the accused’s Sixth Amendment right to effective assistance of counsel by refusing to assist the client in presenting perjured testimony. A criminal defendant has a constitutional right to testify in his own defense, but that right does not include a right to commit perjury, and counsel has no duty to help him do so.
The “narrative approach” grew out of the difficult situation a lawyer faces when a client insists on testifying to something the lawyer knows to be false. Rather than eliciting the false testimony through specific questions, which would make the lawyer a participant in the perjury, some courts and bar authorities have endorsed allowing the client to take the stand and testify in narrative form. The lawyer does not question the client about the false matter and does not rely on the false testimony in argument. Nix v. Whiteside noted that the narrative approach is one of the methods that has been discussed for handling client perjury, although the Court did not impose a single mandatory procedure, and approaches have varied among jurisdictions and over time as professional responsibility rules have evolved.
How these two threads come together for an accused
For an accused service member, then, narrative testimony can arise in two quite different ways. In the ordinary case, it is simply a matter of presentation, and the military judge may permit the accused to describe events in his own words when that aids the truth-seeking function and stays within the rules of evidence. In the special case where defense counsel confronts a client determined to testify falsely, the narrative format becomes an ethical tool that allows the accused to exercise his right to testify while keeping counsel from participating in perjury. Military defense counsel are bound by professional responsibility rules that, like their civilian counterparts, prohibit knowingly offering false evidence, and those rules shape how counsel handles a client who intends to lie on the stand.
Practical considerations
An accused who simply prefers to tell his story in a flowing account should understand that the format is up to the military judge, who may require a return to question and answer to keep the testimony admissible and to protect the opposing party’s ability to object. An accused who is tempted to testify falsely should understand that his lawyer cannot assist in perjury, that the narrative approach is a constrained accommodation rather than a green light, and that perjury is itself a separate offense. The right at stake is the right to testify, not a right to choose any format or to testify to falsehoods.
Bottom line
An accused member may testify in narrative form rather than standard question and answer when the military judge, exercising broad authority over the mode of examination, permits it. There is no absolute right to the narrative format, and the judge can insist on question and answer to preserve the controls that protect a fair trial. The narrative form takes on special importance under Nix v. Whiteside as a means of accommodating a client’s right to testify without enlisting counsel in perjury. Any accused weighing how to present his testimony should discuss the options, and the ethical limits, with qualified military defense counsel before taking the stand.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.