Title 33, MILITARY AFFAIRS

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…

Notwithstanding the provisions of § 33-10-155 , 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 respons…

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 …

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 a…

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 that: (1) The accused shall be presumed to be innocent until the accused's guilt is es…

Sections 33-10-151 to § 33-10-153 , inclusive, 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 a…

No person may be convicted of an offense except as provided in § 33-10-136 or by the concurrence of two-thirds of the members present at the time the vote is taken. All other questions to be decided by the members of a general or special court-martial shall be determined by a maj…

A court-martial shall announce its findings and sentence to the parties as soon as determined. Source: SL 2012, ch 175 , § 137.

Each general and special court-martial shall keep a separate record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of the judge'…

A complete verbatim record of the proceedings and testimony shall be prepared in each general and special court-martial case resulting in a conviction. In all other court-martial cases, the record shall contain such matters as may be prescribed by rules promulgated pursuant to ch…

Each summary court-martial shall keep a separate record of the proceedings in each case. The record shall be authenticated in the manner as may be prescribed by rules promulgated pursuant to chapter 1-26 by the Adjutant General. Source: SL 2012, ch 175 , § 140; SL 2023, ch 109 , …

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 authenticated. Source: SL 2012, ch 175 , § 141.

Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment may not be adjudged by a court-martial or inflicted upon any person subject to this code. The use of irons, single or double, except for the purpose of safe custody…

The punishment which a court-martial may direct for an offense may not exceed such limits as prescribed by this code, but in no instance may a sentence exceed more than ten years for a military offense, nor may a sentence of death be adjudged. A conviction by general court-martia…

The limits of punishment for violations of the punitive provision prescribed by this code shall be lesser of the sentences prescribed by the manual for courts-martial of the United States in effect at the time of the offense, and the state manual for courts-martial. However, in n…

If a sentence of a court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement not suspended, the forfeiture may apply to pay or allowances becoming due on or after the date the sentence is approved by the convening author…