31-2A-29
Section 31-2A-29 (Article 29.) Absent and additional members. (a) No member of a general or
special court-martial may be absent or excused after the court has been assembled for the
trial of the accused unless excused as a result of a challenge, excused by the military judge
for physical disability or other good cause, or excused by order of the convening authority
for good cause. (b) Whenever a general court-martial, other than a general court-martial composed
of a military judge only, is reduced below five members, the trial may not proceed unless
the convening authority details new members sufficient in number to provide not less than
the applicable minimum number of five members. The trial may proceed with the new members
present after the recorded evidence previously introduced before the members of the court
has been read to the court in the presence of the military judge, the accused, and counsel
for both sides. (c) Whenever a special court-martial, other than a special...
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31-2A-51
Section 31-2A-51 (Article 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. However, the military judge may change the
ruling at any time during the trial. Unless the ruling is final, if any member objects thereto,
the court shall be cleared and closed and the question decided by a voice vote as provided
in Section 31-2A-52 (Article 52), beginning with the junior in...
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31-2A-26
Section 31-2A-26 (Article 26.) Military judge of a general or special court-martial. (a) A
military judge shall be detailed to each general and special court-martial. The military judge
shall preside over each open session of the court-martial to which the military judge has
been detailed. (b) A military judge shall be all of the following: (1) An active or retired
commissioned officer. (2) A member in good standing of the bar of the highest court of a state
or a member of the bar of a federal court for at least five years. (3) Either a certified
military judge or a judge of a court of competent jurisdiction who is approved by the Adjutant
General. (c) In the instance when a military judge is not a member of the bar of the highest
court of the state, the military judge shall be deemed admitted pro hac vice, subject to filing
a certificate with the state judge advocate setting forth such qualifications provided in
subsection (b) and with notice and approval of the State Bar and Chief...
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31-2A-41
Section 31-2A-41 (Article 41.) Challenges. (a) Challenges For Cause. (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 or the court 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 minimum number of members required by Section 31-2A-16 (Article
16), all parties, notwithstanding Section 31-2A-29 (Article 29), shall 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) Peremptory Challenges. (1) Each accused and the trial...
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31-2A-64
Section 31-2A-64 (Article 64.) Review by the Senior Judge Advocate. (a) Each general and special
court-martial case in which there has been a finding of guilty shall be reviewed by the senior
judge advocate, or a designee for the convening authority. The senior judge advocate, or designee,
may not review a case under this subsection if that person has acted in the same case as an
accuser, investigating officer, member of the court, military judge, or counsel or has otherwise
acted on behalf of the prosecution or defense. The senior judge advocate's review shall be
in writing and shall contain all of the following: (1) Conclusions as to whether: a. The court
had jurisdiction over the accused and the offense. b. The charge and specification stated
an offense. c. The sentence was within the limits prescribed as a matter of law. (2) A response
to each allegation of error made in writing by the accused. (3) If the case is sent for action
under subsection (b), a recommendation as to the...
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31-2A-42
Section 31-2A-42 (Article 42.) Oaths or affirmations. (a) Before performing their respective
duties, military judges, general and special courts-martial members, trial counsel, defense
counsel, reporters, and interpreters shall take an oath or affirmation in the presence of
the accused to perform their duties faithfully. The form of the oath or affirmation, the time
and place of the taking of the oath, the manner of recording the oath, and whether the oath
or affirmation shall be taken for all cases in which these duties are to be performed or for
a particular case, shall be as prescribed in regulation or as provided by law. These regulations
may provide that an oath or affirmation to perform faithfully the duties as a military judge,
trial counsel, or defense counsel may be taken at any time by any judge advocate or other
person certified or designated to be qualified or competent for the duty, and if such an oath
or affirmation is taken, it need not again be taken at the time the...
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31-2A-46
Section 31-2A-46 (Article 46.) Opportunity to obtain witnesses and other evidence; subpoena.
The trial counsel, the defense counsel, and the court-martial shall have equal opportunity
to obtain witnesses and other evidence as prescribed by regulations and provided by law. Process
issued in court-martial cases to compel witnesses to appear and testify and to compel the
production of other evidence shall apply the principles of law and the rules of courts-martial
generally recognized in military criminal cases in the courts of the Armed Forces of the United
States, but which may not be contrary to or inconsistent with this code. Process shall run
to any part of the United States, or the territories, commonwealths, and possessions, and
may be executed by civil officers as prescribed by the laws of the place where the witness
or evidence is located or outside of the United States. A court-martial convened under this
code may subpoena and compel the presence of witnesses and the production...
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31-2A-62
Section 31-2A-62 (Article 62.) Appeal by the state. (a)(1) In a trial by court-martial in which
a punitive discharge may be adjudged, the state may appeal the following, other than a finding
of not guilty with respect to the charge or specification by the members of the court-martial
or an order or ruling that is, or that amounts to, a finding of not guilty with respect to
the charge or specification: a. An order or ruling of the military judge which terminates
the proceedings with respect to a charge or specification. b. An order or ruling which excludes
evidence that is substantial proof of a fact material in the proceeding. c. An order or ruling
which directs the disclosure of classified information. d. An order or ruling which imposes
sanctions for nondisclosure of classified information. e. A refusal of the military judge
to issue a protective order sought by the state to prevent the disclosure of classified information.
f. A refusal by the military judge to enforce an order...
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31-2A-136
Section 31-2A-136 (Article 136.) Authority to administer oaths and to act as notary. (a) The
following persons may administer oaths for the purposes of military administration, including
military justice: (1) All judge advocates. (2) All summary courts-martial. (3) All adjutants,
assistant adjutants, acting adjutants, and personnel adjutants. (4) All other persons designated
by regulations of the Armed Forces of the United States or by statute. (b) The following persons
may administer oaths necessary in the performance of their duties: (1) The president, military
judge, and trial counsel for all general and special courts-martial. (2) The president and
the counsel for the court of any court of inquiry. (3) All officers designated to take a deposition.
(4) All persons detailed to conduct an investigation. (5) All recruiting officers. (6) All
other persons designated by regulations of the Armed Forces of the United States or by statute.
(c) The signature without seal of any such person,...
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31-2A-39
Section 31-2A-39 (Article 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, subject to Section 31-2A-35 (Article 35), may 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 code, 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) Performing any other procedural function which does not require
the presence of the members of the court under this code. These proceedings shall be conducted
in the presence of the accused, the defense counsel, and the trial...
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