Title 33 — MILITARY AFFAIRS
23 chapters · 474 sections in this title.
SDCL § 33-10-100 Investigation of charges
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No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consid…
SDCL § 33-10-101 Notice to accused of charges--Right to counsel--Examination of witnesses--Statement of testimony
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The accused shall be advised of the charges against the accused and of the right to be represented at that investigation by counsel. The accused has the right to be represented at that investigation as provided in §§ 33-10-113 to 33-10-115 , inclusive, and in any rule prescribed …
SDCL § 33-10-102 Demand for further investigation
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If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in § 33…
SDCL § 33-10-103 Investigation of uncharged offenses
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If evidence adduced in an investigation indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense without the accused having first been charged with the offense if the accused is: (1) Present at the inv…
SDCL § 33-10-104 Nonjurisdictional error
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The requirements of §§ 33-10-100 to 33-10-103 , inclusive, are binding on all persons administering this code but failure to follow them does not constitute jurisdictional error. Source: SL 2012, ch 175 , § 85.
SDCL § 33-10-105 Forwarding of charges
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If a person is held for trial by general court-martial, the commanding officer shall within fifteen days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the person exercising gener…
SDCL § 33-10-106 Advice of judge advocate regarding charge
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Before directing the trial of any charge by general court-martial, the convening authority shall refer it to a judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless the conveni…
SDCL § 33-10-107 Contents of judge advocate's statement--Reference for trial
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The advice of the judge advocate pursuant to § 33-10-106 with respect to a specification under a charge shall include a written and signed statement by the judge advocate: (1) Expressing conclusions with respect to each matter set forth in § 33-10-106 ; and (2) Recommending actio…
SDCL § 33-10-108 Correction of charges or specifications
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If the charges or specifications are not correct formally or do not conform to the substance of the evidence contained in the report of the investigating officer, formal correction, and such changes in the charges and specifications as are needed to make them conform to the evide…
SDCL § 33-10-109 Service of charges
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The trial counsel shall serve or caused to be served upon the accused a copy of the charges. No person may, against the person's objection, be brought to trial before a general court-martial case within a period of five days after the service of charges upon the accused, or in a …
SDCL § 33-10-110 Promulgation of procedural rules by Governor or adjutant general
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Pretrial, trial, and post-trial procedures, including modes of proof, for courts-martial cases arising under this code, and for courts of inquiry, may be prescribed by the Governor or the adjutant general by rules promulgated pursuant to chapter 1-26 , or as otherwise provided by…
SDCL § 33-10-111 Unlawfully influencing action of court
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No authority convening a general, special, or summary court-martial, nor any other commanding officer, or officer serving on the staff thereof, may censure, reprimand, or admonish the court or any member, the military judge, or counsel thereof, with respect to the findings or sen…
SDCL § 33-10-112 Report of performance as court-martial member, witness, or counsel prohibited
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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 state military forces is qualified to be advanced in grade, or in determining the assignment or t…
SDCL § 33-10-113 Qualifications of trial counsel--Preparation of record
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The trial counsel of a general or special court-martial shall be a member in good standing of a state or federal bar and shall prosecute in the name of the State of South Dakota, and shall, under the direction of the court, prepare the record of the proceedings. Source: SL 2012, …
SDCL § 33-10-114 Qualifications of defense counsel--Rights of accused
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Qualifications of the defense counsel or the accused rights are as follows: (1) The accused has the right to be represented in defense before a general or special court-martial or at an investigation pursuant to §§ 33-10-100 to 33-10-104 , inclusive, as provided in this section; …
SDCL § 33-10-115 Duties of defense counsel in court-martial proceeding resulting in conviction
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In any court-martial proceeding resulting in a conviction, the defense counsel may: (1) Forward for attachment to the record of proceedings a brief of such matters as counsel determines should be considered in behalf of the accused on review, including any objection to the conten…
SDCL § 33-10-116 Sessions without presence of court-martial members--Record
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At any time after the service of charges that have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to § 33-10-109 , call the court into session without the presence of the members for the purpose of: (1) Hearing…
SDCL § 33-10-117 Presence of accused, counsel, and military judge at proceedings--Exception
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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 …
SDCL § 33-10-118 Continuances
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The military judge of a court-martial 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. Source: SL 2012, ch 175 , § 99.
SDCL § 33-10-119 Challenges for cause
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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 chall…
SDCL § 33-10-120 Procedure when court members reduced below minimum by challenge for cause
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If exercise of a challenge for cause reduces the court below the minimum number of members required by § 33-10-61 , all parties shall, notwithstanding the provisions of §§ 33-10-87 to 33-10-90 , inclusive, either exercise or waive any challenge for cause then apparent against the…
SDCL § 33-10-121 Peremptory challenges
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Each accused and the trial counsel are entitled initially to three peremptory challenges of members of the court; and such additional peremptory challenges as the military judge may grant for good cause. No military judge may be challenged except for cause. Source: SL 2012, ch 17…
SDCL § 33-10-122 Procedure when court members reduced below minimum by peremptory challenge
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If exercise of a peremptory challenge reduces the court below the minimum number of members required by § 33-10-61 , the parties shall, notwithstanding the provisions of §§ 33-10-87 to 33-10-90 , inclusive, either exercise or waive any remaining peremptory challenge, not previous…
SDCL § 33-10-123 Challenges after additional members are detailed
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If any additional members are detailed to the court, and after any challenge for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to three peremptory challenges of members of the court; and such additional peremptory…
SDCL § 33-10-124 Oath of military judge, court-martial member, trial counsel, defense counsel, reporter, and interpreter
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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…
SDCL § 33-10-125 Oath of witness
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Each witness before a court-martial shall be examined under oath or affirmation. Source: SL 2012, ch 175 , § 106.
SDCL § 33-10-126 Statute of limitations
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Except as otherwise provided in §§ 33-10-127 to 33-10-131 , inclusive, a person charged with any offense is not liable to be tried by court-martial or punished pursuant to §§ 33-10-50 to 33-10-60 , inclusive, if the offense was committed more than three years before the receipt o…
SDCL § 33-10-127 Unauthorized absence excluded in computing limitation period
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Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in §
SDCL § 33-10-128 Absence from territory excluded in computing limitation period
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Periods in which the accused was absent from territory in which the state has the authority to apprehend the accused, 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 §
SDCL § 33-10-129 Limitation period during wartime
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If the United States is at war, the running of any statute of limitations applicable to any offense under this code: (1) Involving fraud or attempted fraud against the United States, any state, or any agency of either in any manner, whether by conspiracy or not; (2) Committed in …
SDCL § 33-10-130 Statute of limitations for new charges and specifications following dismissal for defect or insufficiency
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If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations: (1) Has expired; or (2) Will expire within one hundred eighty days after the date of dismissal of the charges and specificatio…
SDCL § 33-10-131 Conditions for new charges and specifications
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The conditions referred to in § 33-10-130 are that the new charges and specifications shall: (1) Be received by an officer exercising summary court-martial jurisdiction over the command within one hundred eighty days after the dismissal of the charges or specifications; and (2) A…
SDCL § 33-10-132 Former jeopardy
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No person may, without the person's consent, be tried a second time for the same offense. Source: SL 2012, ch 175 , § 113.
SDCL § 33-10-133 Jeopardy where accused found guilty
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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 § 33-10-132 until the finding of guilty has become final after review of the case has been fully completed. Source: SL 2012, ch 175 , § 114.
SDCL § 33-10-134 Jeopardy where accused not found guilty
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A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of §
SDCL § 33-10-135 Not guilty plea
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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 the accused has entered the plea of guilty improvidently or through lack of understanding of the plea's meaning and effect, or i…
SDCL § 33-10-136 Finding upon guilty plea--Withdrawal of guilty plea
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With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This f…
SDCL § 33-10-137 Opportunity to obtain witnesses and other evidence
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The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence as prescribed by rule and provided by law. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the productio…
SDCL § 33-10-138 Refusal to appear or testify
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Any person not subject to this code who: (1) Has been duly subpoenaed to appear as a witness or to produce books and records before a court-martial or court of inquiry, or before any military or civil officer designated to take a deposition to be read in evidence before such a co…
SDCL § 33-10-139 Witness fees
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The fees and mileage of witnesses shall be paid out of the appropriations for the compensation of witnesses. Source: SL 2012, ch 175 , § 120.
SDCL § 33-10-140 Contempt
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A military judge or summary court-martial officer may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder. A person subject to this code may be punished for contempt by confinement no…
SDCL § 33-10-141 Oral and written depositions
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At any time after charges have been signed as provided in § 33-10-95 , any party may take oral or written depositions unless the military judge or summary court-martial officer hearing the case or, if the case is not being heard, an authority competent to convene a court-martial …
SDCL § 33-10-142 Notice of deposition
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The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. Source: SL 2012, ch 175 , § 123.
SDCL § 33-10-143 Officers before whom deposition taken
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A deposition may be taken before and authenticated by any military or civil officer authorized by the laws of the state or by the laws of the place where the deposition is taken to administer oaths. Source: SL 2012, ch 175 , § 124.
SDCL § 33-10-144 Admissibility of deposition
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A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audiotape, videotape, digital image or file, or similar material, may be played in evidence be…
SDCL § 33-10-145 Admissibility of records of courts of inquiry
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In any case 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 evidenc…
SDCL § 33-10-146 Defense of lack of mental responsibility
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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. Menta…
SDCL § 33-10-147 Burden of proof of lack of mental responsibility
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The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence. Source: SL 2012, ch 175 , § 128.
SDCL § 33-10-148 Findings by court-martial members when lack of mental responsibility at issue
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If the 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; (…
SDCL § 33-10-149 Findings by military judge or summary court-martial officer when lack of mental responsibility at issue
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Section 33-10-148 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 or a summary court-martial officer, if the lack of mental responsibility of the accused with respect to an offense is properly a…