1. U.S. Code
  2. title 10
  3. subtitle A
  4. part II
  5. chapter 47
  6. subchapter VII
  7. § 851

Collapse to view only § 851. Art. 51. Voting and rulings

§ 836. Art. 36. President may prescribe rules
(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not, except as provided in chapter 47A of this title, be contrary to or inconsistent with this chapter.
(b) All rules and regulations made under this article shall be uniform insofar as practicable, except insofar as applicable to military commissions established under chapter 47A of this title.
(Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L. 96–107, title VIII, § 801(b), Nov. 9, 1979, 93 Stat. 811; Pub. L. 101–510, div. A, title XIII, § 1301(4), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 109–366, § 4(a)(3), Oct. 17, 2006, 120 Stat. 2631.)

CITE AS: 10 USC 836

§ 837. Art. 37. Command influence
(a)
(1) No court-martial convening authority, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding.
(2) No court-martial convening authority, nor any other commanding officer, may deter or attempt to deter a potential witness from participating in the investigatory process or testifying at a court-martial. The denial of a request to travel at government expense or refusal to make a witness available shall not by itself constitute unlawful command influence.
(3) No person subject to this chapter may attempt to coerce or, by any unauthorized means, attempt to influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority or preliminary hearing officer with respect to such acts taken pursuant to this chapter as prescribed by the President.
(4) Conduct that does not constitute a violation of paragraphs (1) through (3) may include, for example—
(A) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing persons on the substantive and procedural aspects of courts-martial;
(B) statements regarding criminal activity or a particular criminal offense that do not advocate a particular disposition, or a particular court-martial finding or sentence, or do not relate to a particular accused; or
(C) statements and instructions given in open court by the military judge or counsel.
(5)
(A) Notwithstanding paragraphs (1) through (3), but subject to subparagraph (B)—
(i) a superior convening authority or officer may generally discuss matters to consider regarding the disposition of alleged violations of this chapter with a subordinate convening authority or officer; and
(ii) a subordinate convening authority or officer may seek advice from a superior convening authority or officer regarding the disposition of an alleged offense under this chapter.
(B) No superior convening authority or officer may direct a subordinate convening authority or officer to make a particular disposition in a specific case or otherwise substitute the discretion of such authority or such officer for that of the subordinate convening authority or officer.
(b) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member as a member of a court-martial, or (2) give a less favorable rating or evaluation of any member of the armed forces because of the zeal with which such member, as counsel, represented any person in a court-martial proceeding.
(c) No finding or sentence of a court-martial may be held incorrect on the ground of a violation of this section unless the violation materially prejudices the substantial rights of the accused.
(d)
(1) A superior convening authority or commanding officer may withhold the authority of a subordinate convening authority or officer to dispose of offenses in individual cases, types of cases, or generally.
(2) Except as provided in paragraph (1) or as otherwise authorized by this chapter, a superior convening authority or commanding officer may not limit the discretion of a subordinate convening authority or officer to act with respect to a case for which the subordinate convening authority or officer has authority to dispose of the offenses.
(Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L. 90–632, § 2(13), Oct. 24, 1968, 82 Stat. 1338; Pub. L. 116–92, div. A, title V, § 532(a), Dec. 20, 2019, 133 Stat. 1359.)

CITE AS: 10 USC 837

§ 838. Art. 38. Duties of trial counsel and defense counsel
(a) The trial counsel of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of the proceedings.
(b)
(1) The accused has the right to be represented in his defense before a general or special court-martial or at a preliminary hearing under section 832 of this title (article 32) as provided in this subsection.
(2) The accused may be represented by civilian counsel if provided by him.
(3) The accused may be represented—
(A) by military counsel detailed under section 827 of this title (article 27); or
(B) by military counsel of his own selection if that counsel is reasonably available (as determined under regulations prescribed under paragraph (7)).
(4) If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (3) shall act as associate counsel unless excused at the request of the accused.
(5) Except as provided under paragraph (6), if the accused is represented by military counsel of his own selection under paragraph (3)(B), any military counsel detailed under paragraph (3)(A) shall be excused.
(6) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section 827 of this title (article 27) to detail counsel, in his sole discretion—
(A) may detail additional military counsel as assistant defense counsel; and
(B) if the accused is represented by military counsel of his own selection under paragraph (3)(B), may approve a request from the accused that military counsel detailed under paragraph (3)(A) act as associate defense counsel.
(7) The Secretary concerned shall, by regulation, define “reasonably available” for the purpose of paragraph (3)(B) and establish procedures for determining whether the military counsel selected by an accused under that paragraph is reasonably available. Such regulations may not prescribe any limitation based on the reasonable availability of counsel solely on the grounds that the counsel selected by the accused is from an armed force other than the armed force of which the accused is a member. To the maximum extent practicable, such regulations shall establish uniform policies among the armed forces while recognizing the differences in the circumstances and needs of the various armed forces. The Secretary concerned shall submit copies of regulations prescribed under this paragraph to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.
(c) In any court-martial proceeding resulting in a conviction, the defense counsel—
(1) may forward for attachment to the record of proceedings a brief of such matters as he determines should be considered in behalf of the accused on review (including any objection to the contents of the record which he considers appropriate);
(2) may assist the accused in the submission of any matter under section 860, 860a, or 860b of this title (article 60, 60a, or 60b); and
(3) may take other action authorized by this chapter.
(d) An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he is qualified to be a trial counsel as required by section 827 of this title (article 27), perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel of the court. An assistant trial counsel of a special court-martial may perform any duty of the trial counsel.
(e) An assistant defense counsel of a general or special court-martial may perform any duty imposed by law, regulation, or the custom of the service upon counsel for the accused.
(Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L. 90–632, § 2(14), Oct. 24, 1968, 82 Stat. 1338; Pub. L. 97–81, § 4(b), Nov. 20, 1981, 95 Stat. 1088; Pub. L. 98–209, § 3(e), Dec. 6, 1983, 97 Stat. 1394; Pub. L. 104–106, div. A, title XV, § 1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 106–65, div. A, title X, § 1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 113–66, div. A, title XVII, § 1702(c)(3)(C), Dec. 26, 2013, 127 Stat. 957; Pub. L. 114–328, div. E, title LVII, § 5221, Dec. 23, 2016, 130 Stat. 2909; Pub. L. 115–91, div. A, title V, § 531(c), Dec. 12, 2017, 131 Stat. 1384.)

CITE AS: 10 USC 838

§ 839. Art. 39. Sessions
(a) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to section 835 of this title (article 35), call the court into session without the presence of the members for the purpose of—
(1) hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;
(2) hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members of the court;
(3) holding the arraignment and receiving the pleas of the accused;
(4) conducting a sentencing proceeding and sentencing the accused under section 853(b)(1) of this title (article 53(b)(1)); and
(5) performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to section 836 of this title (article 36) and which does not require the presence of the members of the court.
(b) Proceedings under subsection (a) shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. These proceedings may be conducted notwithstanding the number of members of the court and without regard to section 829 of this title (article 29). If authorized by regulations of the Secretary concerned, and if at least one defense counsel is physically in the presence of the accused, the presence required by this subsection may otherwise be established by audiovisual technology (such as videoteleconferencing technology).
(c) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and the military judge.
(d) The findings, holdings, interpretations, and other precedents of military commissions under chapter 47A of this title—
(1) may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial under this chapter; and
(2) may not form the basis of any holding, decision, or other determination of a court-martial.
(Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 90–632, § 2(15), Oct. 24, 1968, 82 Stat. 1338; Pub. L. 101–510, div. A, title V, § 541(a), Nov. 5, 1990, 104 Stat. 1565; Pub. L. 109–163, div. A, title V, § 556, Jan. 6, 2006, 119 Stat. 3266; Pub. L. 111–84, div. A, title XVIII, § 1803(a)(2), Oct. 28, 2009, 123 Stat. 2612; Pub. L. 114–328, div. E, title LVII, § 5222, Dec. 23, 2016, 130 Stat. 2909; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(D), Dec. 12, 2017, 131 Stat. 1598.)

CITE AS: 10 USC 839

§ 840. Art. 40. Continuances

The military judge or a summary court-martial may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.

(Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 90–632, § 2(16), Oct. 24, 1968, 82 Stat. 1339; Pub. L. 114–328, div. E, title LVII, § 5223, Dec. 23, 2016, 130 Stat. 2909.)

CITE AS: 10 USC 840

§ 841. Art. 41. Challenges
(a)
(1) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge shall determine the relevancy and validity of challenges for cause, and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.
(2) If exercise of a challenge for cause reduces the court below the number of members required by section 816 of this title (article 16), all parties shall (notwithstanding section 829 of this title (article 29)) either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court. However, peremptory challenges shall not be exercised at that time.
(b)
(1) Each accused and the trial counsel are entitled initially to one peremptory challenge of members of the court. The military judge may not be challenged except for cause.
(2) If exercise of a peremptory challenge reduces the court below the number of members required by section 816 of this title (article 16), the parties shall (notwithstanding section 829 of this title (article 29)) either exercise or waive any remaining peremptory challenge (not previously waived) against the remaining members of the court before additional members are detailed to the court.
(c) Whenever additional members are detailed to the court, and after any challenges for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to one peremptory challenge against members not previously subject to peremptory challenge.
(Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 90–632, § 2(17), Oct. 24, 1968, 82 Stat. 1339; Pub. L. 101–510, div. A, title V, § 541(b)–(d), Nov. 5, 1990, 104 Stat. 1565; Pub. L. 111–383, div. A, title X, § 1075(b)(13), Jan. 7, 2011, 124 Stat. 4369; Pub. L. 114–328, div. E, title LVII, § 5224, Dec. 23, 2016, 130 Stat. 2909.)

CITE AS: 10 USC 841

§ 842. Art. 42. Oaths
(a) Before performing their respective duties, military judges, members of general and special courts-martial, trial counsel, assistant trial counsel, defense counsel, assistant or associate defense counsel, reporters, and interpreters shall take an oath to perform their duties faithfully. The form of the oath, the time and place of the taking thereof, the manner of recording the same, and whether the oath shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulations of the Secretary concerned. These regulations may provide that an oath to perform faithfully duties as a military judge, trial counsel, assistant trial counsel, defense counsel, or assistant or associate defense counsel may be taken at any time by any judge advocate or other person certified to be qualified or competent for the duty, and if such an oath is taken it need not again be taken at the time the judge advocate or other person is detailed to that duty.
(b) Each witness before a court-martial shall be examined on oath.
(Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 90–632, § 2(18), Oct. 24, 1968, 82 Stat. 1339; Pub. L. 98–209, §§ 2(e), 3(f), Dec. 6, 1983, 97 Stat. 1393, 1395.)

CITE AS: 10 USC 842

§ 843. Art. 43. Statute of limitations
(a)No Limitation for Certain Offenses.—A person charged with absence without leave or missing movement in time of war, with murder, rape or sexual assault, or rape or sexual assault of a child, maiming of a child, kidnapping of a child, or with any other offense punishable by death, may be tried and punished at any time without limitation.
(b)Five-year Limitation for Trial by Court-martial.—
(1) Except as otherwise provided in this section (article), a person charged with an offense is not liable to be tried by court-martial if the offense was committed more than five years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.
(2)
(A) A person charged with having committed a child abuse offense against a child is liable to be tried by court-martial if the sworn charges and specifications are received during the life of the child or within ten years after the date on which the offense was committed, whichever provides a longer period, by an officer exercising summary court-martial jurisdiction with respect to that person.
(B) In subparagraph (A), the term “child abuse offense” means an act that involves abuse of a person who has not attained the age of 16 years and constitutes any of the following offenses:
(i) Any offense in violation of section 920, 920a, 920b, 920c, or 930 of this title (article 120, 120a, 120b, 120c, or 130), unless the offense is covered by subsection (a).
(ii) Aggravated assault, assault consummated by a battery, or assault with intent to commit specified offenses in violation of section 928 of this title (article 128).
(C) In subparagraph (A), the term “child abuse offense” includes an act that involves abuse of a person who has not attained the age of 18 years and would constitute an offense under chapter 110 or 117 of title 18 or under section 1591 of that title.
(3) A person charged with an offense is not liable to be punished under section 815 of this title (article 15) if the offense was committed more than two years before the imposition of punishment.
(c)Tolling for Absence Without Leave or Flight From Justice.—Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in this section (article).
(d)Tolling for Absence From US or Military Jurisdiction.—Periods in which the accused was absent from territory in which the United States has the authority to apprehend him, or in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this article.
Extension for Offenses in Time of War Detrimental to Prosecution of War.—For an offense the trial of which in time of war is certified to the President by the Secretary concerned to be detrimental to the prosecution of the war or inimical to the national security, the period of limitation prescribed in this article is extended to six months after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.
(f)Extension for Other Offenses in Time of War.—When the United States is at war, the running of any statute of limitations applicable to any offense under this chapter—
(1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not;
(2) committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the United States; or
(3) committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or Government agency;
is suspended until three years after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.
(g)Defective or Insufficient Charges.—
(1) If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations—
(A) has expired; or
(B) will expire within 180 days after the date of dismissal of the charges and specifications,
trial and punishment under new charges and specifications are not barred by the statute of limitations if the conditions specified in paragraph (2) are met.
(2) The conditions referred to in paragraph (1) are that the new charges and specifications must—
(A) be received by an officer exercising summary court-martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications; and
(B) allege the same acts or omissions that were alleged in the dismissed charges or specifications (or allege acts or omissions that were included in the dismissed charges or specifications).
(h)Fraudulent Enlistment or Appointment.—A person charged with fraudulent enlistment or fraudulent appointment under section 904a(1) of this title (article 104a(1)) may be tried by court-martial if the sworn charges and specifications are received by an officer exercising summary court-martial jurisdiction with respect to that person, as follows:
(1) In the case of an enlisted member, during the period of the enlistment or five years, whichever provides a longer period.
(2) In the case of an officer, during the period of the appointment or five years, whichever provides a longer period.
(i)DNA Evidence.—If DNA testing implicates an identified person in the commission of an offense punishable by confinement for more than one year, no statute of limitations that would otherwise preclude prosecution of the offense shall preclude such prosecution until a period of time following the implication of the person by DNA testing has elapsed that is equal to the otherwise applicable limitation period.
(Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 99–661, div. A, title VIII, § 805(a), (b), Nov. 14, 1986, 100 Stat. 3908; Pub. L. 108–136, div. A, title V, § 551, Nov. 24, 2003, 117 Stat. 1481; Pub. L. 109–163, div. A, title V, §§ 552(e), 553, Jan. 6, 2006, 119 Stat. 3263, 3264; Pub. L. 109–364, div. A, title X, § 1071(a)(4), Oct. 17, 2006, 120 Stat. 2398; Pub. L. 111–383, div. A, title X, § 1075(b)(14), Jan. 7, 2011, 124 Stat. 4369; Pub. L. 112–81, div. A, title V, § 541(d)(1), Dec. 31, 2011, 125 Stat. 1410; Pub. L. 112–239, div. A, title X, § 1076(f)(8), Jan. 2, 2013, 126 Stat. 1952; Pub. L. 113–66, div. A, title XVII, § 1703(a), (b), Dec. 26, 2013, 127 Stat. 958; Pub. L. 113–291, div. A, title V, § 531(d)(2)(A), Dec. 19, 2014, 128 Stat. 3364; Pub. L. 114–328, div. E, title LVII, § 5225(a)–(e), Dec. 23, 2016, 130 Stat. 2909, 2910; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(E), Dec. 12, 2017, 131 Stat. 1598; Pub. L. 116–92, div. A, title V, § 533(a), Dec. 20, 2019, 133 Stat. 1361.)

CITE AS: 10 USC 843

§ 844. Art. 44. Former jeopardy
(a) No person may, without his consent, be tried a second time for the same offense.
(b) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed.
(c)
(1) A court-martial with a military judge alone is a trial in the sense of this section (article) if, without fault of the accused—
(A) after introduction of evidence; and
(B) before announcement of findings under section 853 of this title (article 53);
the case is dismissed or terminated by the convening authority or the special trial counsel or on motion of the prosecution for failure of available evidence or witnesses.
(2) A court-martial with a military judge and members is a trial in the sense of this section (article) if, without fault of the accused—
(A) after the members, having taken an oath as members under section 842 of this title (article 42) and after completion of challenges under section 841 of this title (article 41), are impaneled; and
(B) before announcement of findings under section 853 of this title (article 53);
the case is dismissed or terminated by the convening authority or the special trial counsel or on motion of the prosecution for failure of available evidence or witnesses.
(Aug. 10, 1956, ch. 1041, 70A Stat. 52; Pub. L. 114–328, div. E, title LVII, § 5226, Dec. 23, 2016, 130 Stat. 2910; Pub. L. 117–81, div. A, title V, § 538, Dec. 27, 2021, 135 Stat. 1698.)

CITE AS: 10 USC 844

§ 845. Art. 45. Pleas of the accused
(a)Irregular and Similar Pleas.—If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.
(b)Pleas of Guilty.—A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty is mandatory. With respect to any other charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.
(c)Harmless Error.—A variance from the requirements of this article is harmless error if the variance does not materially prejudice the substantial rights of the accused.
(Aug. 10, 1956, ch. 1041, 70A Stat. 52; Pub. L. 90–632, § 2(19), Oct. 24, 1968, 82 Stat. 1339; Pub. L. 114–328, div. E, title LVII, § 5227, Dec. 23, 2016, 130 Stat. 2911.)

CITE AS: 10 USC 845

§ 846. Art. 46. Opportunity to obtain witnesses and other evidence in trials by court-martial
(a)Opportunity To Obtain Witnesses and Other Evidence.—In a case referred for trial by court-martial, the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.
(b)Subpoena and Other Process Generally.—Any subpoena or other process issued under this section (article)—
(1) shall be similar to that which courts of the United States having criminal jurisdiction may issue;
(2) shall be executed in accordance with regulations prescribed by the President; and
(3) shall run to any part of the United States and to the Commonwealths and possessions of the United States.
(c)Subpoena and Other Process for Witnesses.—A subpoena or other process may be issued to compel a witness to appear and testify—
(1) before a court-martial, military commission, or court of inquiry;
(2) at a deposition under section 849 of this title (article 49); or
(3) as otherwise authorized under this chapter.
(d)Subpoena and Other Process for Evidence.—
(1)In general.—A subpoena or other process may be issued to compel the production of evidence—
(A) for a court-martial, military commission, or court of inquiry;
(B) for a deposition under section 849 of this title (article 49);
(C) for an investigation of an offense under this chapter; or
(D) as otherwise authorized under this chapter.
(2)Investigative subpoena.—An investigative subpoena under paragraph (1)(C) may be issued before referral of charges to a court-martial only if a general court-martial convening authority has authorized counsel for the Government to issue such a subpoena or a military judge issues such a subpoena pursuant to section 830a of this title (article 30a).
(3)Warrant or order for wire or electronic communications.—With respect to an investigation of an offense under this chapter, a military judge detailed in accordance with section 826 or 830a of this title (article 26 or 30a) may issue warrants or court orders for the contents of, and records concerning, wire or electronic communications in the same manner as such warrants and orders may be issued by a district court of the United States under chapter 121 of title 18, subject to such limitations as the President may prescribe by regulation.
(e)Request for Relief From Subpoena or Other Process.—If a person requests relief from a subpoena or other process under this section (article) on grounds that compliance is unreasonable or oppressive or is prohibited by law, a military judge detailed in accordance with section 826 or 830a of this title (article 26 or 30a) shall review the request and shall—
(1) order that the subpoena or other process be modified or withdrawn, as appropriate; or
(2) order the person to comply with the subpoena or other process.
(Aug. 10, 1956, ch. 1041, 70A Stat. 53; Pub. L. 109–163, div. A, title X, § 1057(a)(6), Jan. 6, 2006, 119 Stat. 3441; Pub. L. 113–66, div. A, title XVII, § 1704, Dec. 26, 2013, 127 Stat. 958; Pub. L. 113–291, div. A, title V, § 531(b), Dec. 19, 2014, 128 Stat. 3363; Pub. L. 114–328, div. E, title LVII, § 5228(a), Dec. 23, 2016, 130 Stat. 2911.)

CITE AS: 10 USC 846

§ 847. Art. 47. Refusal of person not subject to chapter to appear, testify, or produce evidence
(a)In General.—
(1) Any person described in paragraph (2) who—
(A) willfully neglects or refuses to appear; or
(B) willfully refuses to qualify as a witness or to testify or to produce any evidence which that person is required to produce;
is guilty of an offense against the United States.
(2) The persons referred to in paragraph (1) are the following:
(A) Any person not subject to this chapter who—
(i) is issued a subpoena or other process described in subsection (c) of section 846 of this title (article 46); and
(ii) is provided a means for reimbursement from the Government for fees and mileage at the rates allowed to witnesses attending the courts of the United States or, in the case of extraordinary hardship, is advanced such fees and mileage.
(B) Any person not subject to this chapter who is issued a subpoena or other process described in subsection (d) of section 846 of this title (article 46).
(b) Any person who commits an offense named in subsection (a) shall be tried on indictment or information in a United States district court or in a court of original criminal jurisdiction in any of the Commonwealths or possessions of the United States, and jurisdiction is conferred upon those courts for that purpose. Upon conviction, such a person shall be fined or imprisoned, or both, at the court’s discretion.
(c) The United States attorney or the officer prosecuting for the United States in any such court of original criminal jurisdiction shall, upon the certification of the facts to him by the military court, commission, court of inquiry, board, or convening authority, file an information against and prosecute any person violating this article.
(d) The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses.
(Aug. 10, 1956, ch. 1041. 70A Stat. 53; Pub. L. 104–106, div. A, title XI, § 1111, Feb. 10, 1996, 110 Stat. 461; Pub. L. 109–163, div. A, title X, § 1057(a)(5), Jan. 6, 2006, 119 Stat. 3440; Pub. L. 112–81, div. A, title V, § 542(a), (b), Dec. 31, 2011, 125 Stat. 1411; Pub. L. 113–66, div. A, title XVII, § 1702(c)(3)(D), Dec. 26, 2013, 127 Stat. 958; Pub. L. 114–328, div. E, title LVII, § 5229, Dec. 23, 2016, 130 Stat. 2913.)

CITE AS: 10 USC 847

§ 848. Art. 48. Contempt
(a)Authority To Punish.—
(1) With respect to any proceeding under this chapter, a judicial officer specified in paragraph (2) may punish for contempt any person who—
(A) uses any menacing word, sign, or gesture in the presence of the judicial officer during the proceeding;
(B) disturbs the proceeding by any riot or disorder; or
(C) willfully disobeys a lawful writ, process, order, rule, decree, or command issued with respect to the proceeding.
(2) A judicial officer referred to in paragraph (1) is any of the following:
(A) Any judge of the Court of Appeals for the Armed Forces and any judge of a Court of Criminal Appeals under section 866 of this title (article 66).
(B) Any military judge detailed to a court-martial, a provost court, a military commission, or any other proceeding under this chapter.
(C) Any military magistrate designated to preside under section 819 of this title (article 19).
(D) The president of a court of inquiry.
(b)Punishment.—The punishment for contempt under subsection (a) may not exceed confinement for 30 days, a fine of $1,000, or both.
(c)Review.—A punishment under this section—
(1) if imposed by a military judge or military magistrate, may be reviewed by the Court of Criminal Appeals in accordance with the uniform rules of procedure for the Courts of Criminal Appeals under section 866(h) of this title (article 66(h));
(2) if imposed by a judge of the Court of Appeals for the Armed Forces or a judge of a Court of Criminal Appeals, shall constitute a judgment of the court, subject to review under the applicable provisions of section 867 or 867a of this title (article 67 or 67a); and
(3) if imposed by a court of inquiry, shall be subject to review by the convening authority in accordance with rules prescribed by the President.
(d)Inapplicability to Military Commissions Under Chapter 47A.—This section does not apply to a military commission established under chapter 47A of this title.
(Aug. 10, 1956, ch. 1041, 70A Stat. 53; Pub. L. 109–366, § 4(a)(2), Oct. 17, 2006, 120 Stat. 2631; Pub. L. 111–383, div. A, title V, § 542(a), Jan. 7, 2011, 124 Stat. 4218; Pub. L. 114–328, div. E, title LVII, § 5230, Dec. 23, 2016, 130 Stat. 2913; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(F), Dec. 12, 2017, 131 Stat. 1598.)

CITE AS: 10 USC 848

§ 849. Art. 49. Depositions
(a)In General.—
(1) Subject to paragraph (2), a convening authority or a military judge may order depositions at the request of any party.
(2) A deposition may be ordered under paragraph (1) only if the requesting party demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of a prospective witness be preserved for use at a court-martial, military commission, court of inquiry, or other military court or board.
(3) A party who requests a deposition under this section shall give to every other party reasonable written notice of the time and place for the deposition.
(4) A deposition under this section shall be taken before, and authenticated by, an impartial officer, as follows:
(A) Whenever practicable, by an impartial judge advocate certified under section 827(b) of this title (article 27(b)).
(B) In exceptional circumstances, by an impartial military or civil officer authorized to administer oaths by (i) the laws of the United States or (ii) the laws of the place where the deposition is taken.
(b)Representation by Counsel.—Representation of the parties with respect to a deposition shall be by counsel detailed in the same manner as trial counsel and defense counsel are detailed under section 827 of this title (article 27). In addition, the accused shall have the right to be represented by civilian or military counsel in the same manner as such counsel are provided for in section 838(b) of this title (article 38(b)).
(c)Admissibility and Use as Evidence.—A deposition order under subsection (a) does not control the admissibility of the deposition in a court-martial or other proceeding under this chapter. Except as provided by subsection (d), a party may use all or part of a deposition as provided by the rules of evidence.
(d)Capital Cases.—Testimony by deposition may be presented in capital cases only by the defense.
(Aug. 10, 1956, ch. 1041, 70A Stat. 53; Pub. L. 90–632, § 2(20), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 98–209, § 6(b), Dec. 6, 1983, 97 Stat. 1400; Pub. L. 109–163, div. A, title X, § 1057(a)(3), Jan. 6, 2006, 119 Stat. 3440; Pub. L. 113–291, div. A, title V, § 532, Dec. 19, 2014, 128 Stat. 3366; Pub. L. 114–328, div. E, title LVII, § 5231, Dec. 23, 2016, 130 Stat. 2914.)

CITE AS: 10 USC 849

§ 850. Art. 50. Admissibility of sworn testimony from records of courts of inquiry
(a)Use as Evidence by Any Party.—In any case not capital and not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial or military commission if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence. This section does not apply to a military commission established under chapter 47A of this title.
(b)Use as Evidence by Defense.—Such testimony may be read in evidence only by the defense in capital cases or cases extending to the dismissal of a commissioned officer.
(c)Use in Courts of Inquiry and Military Boards.—Such testimony may also be read in evidence before a court of inquiry or a military board.
(d)Audiotape or Videotape.—Sworn testimony that—
(1) is recorded by audiotape, videotape, or similar method; and
(2) is contained in the duly authenticated record of proceedings of a court of inquiry;
is admissible before a court-martial, military commission, court of inquiry, or military board, to the same extent as sworn testimony may be read in evidence before any such body under subsection (a), (b), or (c).
(Aug. 10, 1956, ch. 1041, 70A Stat. 54; Pub. L. 109–366, § 4(a)(2), Oct. 17, 2006, 120 Stat. 2631; Pub. L. 114–328, div. E, title LVII, § 5232, Dec. 23, 2016, 130 Stat. 2915.)

CITE AS: 10 USC 850

§ 850a. Art. 50a. Defense of lack of mental responsibility
(a) It is an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.
(b) The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.
(c) Whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall instruct the members of the court as to the defense of lack of mental responsibility under this section and charge them to find the accused—
(1) guilty;
(2) not guilty; or
(3) not guilty only by reason of lack of mental responsibility.
(d) Subsection (c) does not apply to a court-martial composed of a military judge only. In the case of a court-martial composed of a military judge only, whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall find the accused—
(1) guilty;
(2) not guilty; or
(3) not guilty only by reason of lack of mental responsibility.
(e) Notwithstanding the provisions of section 852 of this title (article 52), the accused shall be found not guilty only by reason of lack of mental responsibility if—
(1) a majority of the members of the court-martial present at the time the vote is taken determines that the defense of lack of mental responsibility has been established; or
(2) in the case of a court-martial composed of a military judge only, the military judge determines that the defense of lack of mental responsibility has been established.
(Added Pub. L. 99–661, div. A, title VIII, § 802(a)(1), Nov. 14, 1986, 100 Stat. 3905; Pub. L. 114–328, div. E, title LVII, § 5233, Dec. 23, 2016, 130 Stat. 2915.)

CITE AS: 10 USC 850a

§ 851. Art. 51. Voting and rulings
(a) Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.
(b) The military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused is final and constitutes the ruling of the court, except that the military judge may change a ruling at any time during trial.
(c) Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them—
(1) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;
(2) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted;
(3) that, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and
(4) that the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the United States.
(d) Subsections (a), (b), and (c) do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.
(Aug. 10, 1956, ch. 1041, 70A Stat. 54; Pub. L. 90–632, § 2(21), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 114–328, div. E, title LVII, § 5234, Dec. 23, 2016, 130 Stat. 2915.)

CITE AS: 10 USC 851

§ 852. Art. 52. Votes required for conviction, sentencing, and other matters
(a)In General.—No person may be convicted of an offense in a general or special court-martial, other than—
(1) after a plea of guilty under section 845(b) of this title (article 45(b));
(2) by a military judge in a court-martial with a military judge alone, under section 816 of this title (article 16); or
(3) in a court-martial with members under section 816 of this title (article 16), by the concurrence of at least three-fourths of the members present when the vote is taken.
(b)Level of Concurrence Required.—
(1)In general.—Except as provided in subsection (a) and in paragraph (2), all matters to be decided by members of a general or special court-martial shall be determined by a majority vote, but a reconsideration of a finding of guilty or reconsideration of a sentence, with a view toward decreasing the sentence, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence.
(2)Sentencing.—A sentence of death requires (A) a unanimous finding of guilty of an offense in this chapter expressly made punishable by death and (B) a unanimous determination by the members that the sentence for that offense shall include death. All other sentences imposed by members shall be determined by the concurrence of at least three-fourths of the members present when the vote is taken.
(Aug. 10, 1956, ch. 1041, 70A Stat. 55; Pub. L. 90–632, § 2(22), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 114–328, div. E, title LVII, § 5235, Dec. 23, 2016, 130 Stat. 2916.)

CITE AS: 10 USC 852

§ 853. Art. 53. Findings and sentencing
(a)Announcement.—A court-martial shall announce its findings and sentence to the parties as soon as determined.
(b)Sentencing Generally.—
(1)General and special courts-martial.—Except as provided in subsection (c) for capital offenses, if the accused is convicted of an offense in a trial by general or special court-martial, the military judge shall sentence the accused. The sentence determined by the military judge constitutes the sentence of the court-martial.
(2)Summary courts-martial.—If the accused is convicted of an offense in a trial by summary court-martial, the court-martial shall sentence the accused.
(c)Sentencing for Capital Offenses.—
(1)In general.—In a capital case, if the accused is convicted of an offense for which the court-martial may sentence the accused to death—
(A) the members shall determine—
(i) whether the sentence for that offense shall be death or life in prison without eligibility for parole; or
(ii) whether the matter shall be returned to the military judge for determination of a lesser punishment; and
(B) the military judge shall sentence the accused for that offense in accordance with the determination of the members under subparagraph (A).
(2)Lesser authorized punishments.—In accordance with regulations prescribed by the President, the military judge may include in any sentence to death or life in prison without eligibility for parole other lesser punishments authorized under this chapter.
(3)Other non-capital offenses.—In a capital case, if the accused is convicted of a non-capital offense, the accused shall be sentenced for such non-capital offense in accordance with subsection (b), regardless of whether the accused is convicted of an offense for which the court-martial may sentence the accused to death.
(Aug. 10, 1956, ch. 1041, 70A Stat. 56; Pub. L. 114–328, div. E, title LVII, § 5236, Dec. 23, 2016, 130 Stat. 2916; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(G), Dec. 12, 2017, 131 Stat. 1598; Pub. L. 117–81, div. A, title V, § 539E(a), Dec. 27, 2021, 135 Stat. 1700.)

CITE AS: 10 USC 853

§ 853a. Art. 53a. Plea agreements
(a)In General.—
(1) Subject to paragraph (3), at any time before the announcement of findings under section 853 of this title (article 53), the convening authority and the accused may enter into a plea agreement with respect to such matters as—
(A) the manner in which the convening authority will dispose of one or more charges and specifications; and
(B) limitations on the sentence that may be adjudged for one or more charges and specifications.
(2) The military judge of a general or special court-martial may not participate in discussions between the parties concerning prospective terms and conditions of a plea agreement.
(3) With respect to charges and specifications over which a special trial counsel exercises authority pursuant to section 824a of this title (article 24a), a plea agreement under this section may only be entered into between a special trial counsel and the accused. Such agreement shall be subject to the same limitations and conditions applicable to other plea agreements under this section (article).
(b)Acceptance of Plea Agreement.—Subject to subsection (c), the military judge of a general or special court-martial shall accept a plea agreement submitted by the parties, except that—
(1) in the case of an offense with a sentencing parameter set forth in regulations prescribed by the President pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, the military judge may reject a plea agreement that proposes a sentence that is outside the sentencing parameter if the military judge determines that the proposed sentence is plainly unreasonable; and
(2) in the case of an offense for which the President has not established a sentencing parameter pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022, the military judge may reject a plea agreement that proposes a sentence if the military judge determines that the proposed sentence is plainly unreasonable.
(c)Limitation on Acceptance of Plea Agreements.—The military judge of a general or special court-martial shall reject a plea agreement that—
(1) contains a provision that has not been accepted by both parties;
(2) contains a provision that is not understood by the accused;
(3) except as provided in subsection (c), contains a provision for a sentence that is less than the mandatory minimum sentence applicable to an offense referred to in section 856(b)(2) of this title (article 56(b)(2));
(4) is prohibited by law; or
(5) is contrary to, or is inconsistent with, a regulation prescribed by the President with respect to terms, conditions, or other aspects of plea agreements.
(d)Limited Conditions for Acceptance of Plea Agreement for Sentence Below Mandatory Minimum for Certain Offenses.—With respect to an offense referred to in section 856(b)(2) of this title (article 56(b)(2))—
(1) the military judge may accept a plea agreement that provides for a sentence of bad conduct discharge; and
(2) upon recommendation of the trial counsel, in exchange for substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, the military judge may accept a plea agreement that provides for a sentence that is less than the mandatory minimum sentence for the offense charged.
(e)Binding Effect of Plea Agreement.—Upon acceptance by the military judge of a general or special court-martial, a plea agreement shall bind the parties (including the convening authority and the special trial counsel in the case of a plea agreement entered into under subsection (a)(3)) and the court-martial.
(Added Pub. L. 114–328, div. E, title LVII, § 5237, Dec. 23, 2016, 130 Stat. 2917; amended Pub. L. 115–91, div. A, title V, § 531(d), title X, § 1081(c)(1)(H), Dec. 12, 2017, 131 Stat. 1384, 1598; Pub. L. 117–81, div. A, title V, §§ 539, 539E(b), Dec. 27, 2021, 135 Stat. 1698, 1701.)

CITE AS: 10 USC 853a

§ 854. Art. 54. Record of trial
(a)General and Special Courts-martial.—Each general or special court-martial shall keep a separate record of the proceedings in each case brought before it. The record shall be certified by a court-reporter, except that in the case of death, disability, or absence of a court reporter, the record shall be certified by an official selected as the President may prescribe by regulation.
(b)Summary Courts-martial.—Each summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be certified in the manner required by such regulations as the President may prescribe.
(c)Contents of Record.—
(1) Except as provided in paragraph (2), the record shall contain such matters as the President may prescribe by regulation.
(2) In accordance with regulations prescribed by the President, a complete record of proceedings and testimony shall be prepared in any case of a sentence of death, dismissal, discharge, confinement for more than six months, or forfeiture of pay for more than six months.
(d)Copy to Accused.—A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is certified.
(e)Copy to Victim.—In the case of a general or special court-martial, upon request, a copy of all prepared records of the proceedings of the court-martial shall be given to the victim of the offense if the victim testified during the proceedings. The records of the proceedings shall be provided without charge and as soon as the records are certified. The victim shall be notified of the opportunity to receive the records of the proceedings.
(Aug. 10, 1956, ch. 1041, 70A Stat. 56; Pub. L. 90–632, § 2(23), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 98–209, § 6(c), Dec. 6, 1983, 97 Stat. 1400; Pub. L. 106–398, § 1 [[div. A], title V, § 555(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–127; Pub. L. 112–81, div. A, title V, § 586(e), Dec. 31, 2011, 125 Stat. 1435; Pub. L. 114–328, div. E, title LVII, § 5238, Dec. 23, 2016, 130 Stat. 2918.)

CITE AS: 10 USC 854