Title 33 — MILITARY AFFAIRS
23 chapters · 474 sections in this title.
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…
SDCL § 33-10-150 Conditions for finding of not guilty by reason of lack of mental responsibility
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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…
SDCL § 33-10-151 Voting by secret written ballot
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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 …
SDCL § 33-10-152 Rulings upon questions of law and interlocutory questions
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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…
SDCL § 33-10-153 Instructions
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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…
SDCL § 33-10-154 Findings and rulings by court-martial composed of military judge only
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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…
SDCL § 33-10-155 Number of votes required
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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…
SDCL § 33-10-156 Court to announce action
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A court-martial shall announce its findings and sentence to the parties as soon as determined. Source: SL 2012, ch 175 , § 137.
SDCL § 33-10-157 Record of proceedings--Authentication
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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'…
SDCL § 33-10-158 Contents of record--Promulgation of rules
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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…
SDCL § 33-10-159 Records of summary court-martial--Promulgation of rules
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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 , …
SDCL § 33-10-160 Copy of record to be given to the accused
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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.
SDCL § 33-10-161 Cruel and unusual punishments prohibited
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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…
SDCL § 33-10-162 Maximum sentence--Felony and misdemeanor--Noncriminal conviction
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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…
SDCL § 33-10-163 Limits of punishment
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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…
SDCL § 33-10-164 Forfeitures
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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…
SDCL § 33-10-165 Computation of period of confinement--Effective date of other sentences
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Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of c…
SDCL § 33-10-166 Deferment of sentence to confinement--Rescission
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On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under that person's jurisdiction, the person exercising general court-martial jurisdiction over the command to which the a…
SDCL § 33-10-167 Deferment until after accused has been permanently released to state military forces
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In any case in which a court-martial sentences an accused referred to in § 33-10-168 to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of the accused, until after the accused has been permanently released to the stat…
SDCL § 33-10-168 Persons subject to deferment until permanently released to state military forces
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Section 33-10-167 applies to a person subject to this code who: (1) While in the custody of a state, the United States, or a foreign country is temporarily returned by that state, the United States, or a foreign country to the state military forces for trial by court-martial; and…
SDCL § 33-10-169 Deferment of sentence to confinement while review pending
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In any case in which a court-martial sentences an accused to confinement and the sentence to confinement has been ordered executed, but in which review of the case pursuant to § 33-10-209 is pending, the adjutant general may defer further service of the sentence to confinement wh…
SDCL § 33-10-170 Place of confinement
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A sentence of confinement adjudged by a court-martial, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place authorized by this code. Any person so co…
SDCL § 33-10-171 Hard labor
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The omission of hard labor as a sentence authorized under this code does not deprive the state confinement facility from employing it, if it otherwise is within the authority of that facility to do so. Source: SL 2012, ch 175 , § 152.
SDCL § 33-10-172 Fees for confinement
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No place of confinement may require payment of any fee or charge for so receiving or confining a person except as otherwise provided by law. If no military confinement facility is available and a civilian facility charges fees as provided by law, the person confined shall be resp…
SDCL § 33-10-173 Reduction of enlisted member pay grade
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A court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes: (1) A dishonorable or bad-conduct discharge; or (2) Confinement; reduces that member to pay grade E-1, effective on the date of that approval. Source: S…
SDCL § 33-10-174 Restoration of pay
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If the sentence of a member who is reduced in pay grade pursuant to subdivision 33-10-173(1) is set aside or disapproved, or, as finally approved, does not include any punishment pursuant to subdivisions 33-10-173(1) or (2), the rights and privileges of which the person was depri…
SDCL § 33-10-175 Forfeiture of pay and allowances
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A court-martial sentence described in § 33-10-176 shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. The forfeiture pursuant to this section shall take effect on the date determined pursuant to § 33-10-164 …
SDCL § 33-10-176 Sentences subject to forfeiture of pay and allowances
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A sentence covered by § 33-10-175 is any sentence that includes: (1) Confinement for more than six months; or (2) Confinement for six months or less and a dishonorable or bad-conduct discharge or dismissal. Source: SL 2012, ch 175 , § 157.
SDCL § 33-10-177 Waiver of forfeiture of pay and allowances for dependents of accused
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In a case involving an accused who has dependents, the convening authority or other person acting under this code may waive any or all of the forfeitures of pay and allowances required by § 33-10-175 for a period not to exceed six months. Any amount of pay or allowances that woul…
SDCL § 33-10-178 Restoration of pay and allowances
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If the sentence of a member who forfeits pay and allowances pursuant to § 33-10-175 is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in § 33-10-176 , the member shall be paid the pay and allowances which the member would have been…
SDCL § 33-10-179 Error of law
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A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused. Source: SL 2012, ch 175 , § 160.
SDCL § 33-10-180 Lesser included offense
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Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense. Source: SL 2012, ch 175 , § 161.
SDCL § 33-10-181 Prompt report of findings and sentence to convening authority
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The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence. Source: SL 2012, ch 175 , § 162.
SDCL § 33-10-182 Submission to convening authority of matters for consideration--Time for submission
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The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. Any such submission shall be in writing. Except in a summary court-martial case, such a submission shall be made within ten days a…
SDCL § 33-10-183 Extension of time for submission
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If the accused shows that additional time is required for the accused to submit such matters, the convening authority or other person taking action pursuant to this code, for good cause, may extend the applicable period pursuant to § 33-10-182 for not more than an additional twen…
SDCL § 33-10-184 Provision of record to accused
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In a summary court-martial case, the accused shall be promptly provided a copy of the record of trial for use in preparing a submission authorized by §
SDCL § 33-10-185 Waiver of right to make submission
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The accused may waive the right to make a submission to the convening authority as authorized by §
SDCL § 33-10-186 Authority to modify findings and sentence
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The authority pursuant to § 33-10-188 to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. If it is impractical for the convening authority to act, the convening authority shall forward…
SDCL § 33-10-187 Action on sentence of court-martial
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Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act pursuant to this code. Such action may be taken only after consideration of any matters submitted by the accused pursuant to § 33-10-182 or after the time fo…
SDCL § 33-10-188 Action on findings of court-martial
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Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required. However, such person, in the person's sole discretion may: (1) Dismiss any charge or specification by setting aside a finding of guilty thereto; or (2) Cha…
SDCL § 33-10-189 Recommendation of judge advocate--Promulgation of rules--Response and objection
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Before acting pursuant to § 33-10-188 on any general or special court-martial case in which there is a finding of guilt, the convening authority or other person taking action shall obtain and consider the written recommendation of a judge advocate. The convening authority or othe…