Title 33, MILITARY AFFAIRS

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.

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…

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…

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…

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…

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 …

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…

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…

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…

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, …

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; …

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…

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…

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 …

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.

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…

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…

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…

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…

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…

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…

Each witness before a court-martial shall be examined under oath or affirmation. Source: SL 2012, ch 175 , § 106.

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…

Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in § 33-10-126 . Source: SL 2012, ch 175 , § 108.

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 § 33-10-126 . Source: …

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 …

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…

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…

No person may, without the person's consent, be tried a second time for the same offense. Source: SL 2012, ch 175 , § 113.

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.

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 § 33-10-13…

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…

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…

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…

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…

The fees and mileage of witnesses shall be paid out of the appropriations for the compensation of witnesses. Source: SL 2012, ch 175 , § 120.

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…

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 …

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.

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.

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…

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…

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…

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.

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; (…

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…