(d) The commanding officer of a wing, group, separate squadron, or corresponding unit of the air national guard.
(e) The commanding officer or officer in charge of any other command when empowered by the adjutant general.
(2) If the officer is an accuser, the court shall be convened by superior competent authority and may in any case be convened by a superior authority if considered desirable by the superior competent authority.
322.024 Article 24—Who may convene summary courts-martial. (1) Summary courts-martial may be convened by any of the following:
(a) Any person who may convene a general or special court-martial.
(b) The commanding officer of a detached company or other detachment, or corresponding unit of the army national guard.
(c) The commanding officer of a detached squadron or other detachment, or corresponding unit of the air national guard.
(d) The commanding officer or officer in charge of any other command when empowered by the adjutant general.
(2) When only one commissioned officer is present with a command or detachment that officer shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases. Summary courts-martial may, however, be convened in any case by superior competent authority if considered desirable by that authority.
322.025 Article 25—Who may serve as a member on courts-martial. (1) Any commissioned officer of the state military forces is eligible to serve on all courts-martial for the trial of any person subject to this code.
(2) Any warrant officer of the state military forces is eligible to serve on general and special courts-martial for the trial of any person subject to this code, other than a commissioned officer.
(3) Any enlisted member of the state military forces who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member subject to this code, but that member shall serve as a member of a court only if, before the conclusion of a session called by the military judge under s. 322.039 (1) prior to trial or, in the absence of a session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it. After a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If the members cannot be obtained, the court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained.
(4) When it can be avoided, no person subject to this code may be tried by a court-martial any member of which is junior to the accused in rank or grade.
(5) When convening a court-martial, the convening authority shall detail members of the state military forces as, in the convening authority's opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of the state military forces is eligible to serve as a member of a general or special court-martial when that member is the accuser, a witness, or has acted as investigating officer or as counsel in the same case.
(6) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case.
(7) The convening authority may delegate the authority under this section to a judge advocate or to any other principal assistant.
(8) In this section, "unit" means any regularly organized body of the state military forces not larger than a company, a squadron, a division of the naval militia, or a body corresponding to one of them.
322.026 Article 26—Military judge of a general or special court-martial. (1) 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.
(2) A military judge shall meet all of the following qualifications:
(a) Be a commissioned officer of an organized state military force.
(b) Be an attorney licensed to practice in this state or be a member of the bar of a federal court for at least 5 years.
(c) Certified as qualified for duty as a military judge by the senior force judge advocate which is the same force as the accused.
(3) In the instance when a military judge is not an attorney licensed to practice in this state, the military judge shall be deemed admitted on motion, subject to filing with the senior force judge advocate of the same force as the accused setting forth the qualifications provided in sub. (2).
(4) The military judge of a general or special court-martial shall be designated by the state senior force judge advocate of the same force as the accused if possible, or otherwise by the senior of the senior force judge advocates, or a designee, for detail by the convening authority. Neither the convening authority nor any staff member of the convening authority shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to performance of duty as a military judge.
(5) No person is eligible to act as military judge in a case if that person is the accuser or a witness, or has acted as investigating officer, trial counsel, or defense counsel in the same case.
(6) The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel, and defense counsel nor vote with the members of the court.
322.027 Article 27—Detail of trial counsel and defense counsel. (1) For each general and special court-martial the authority convening the court shall detail trial counsel, defense counsel, and assistants as are appropriate.
(2) No person who has acted as investigating officer, military judge, witness or court member in any case may act later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense nor may any person who has acted for the defense act later in the same case for the prosecution.
(3) Except as provided in sub. (4), trial counsel or defense counsel detailed for a general or special court-martial must meet all of the following:
(a) A judge advocate as defined in this code.
(b) In the case of trial counsel, an attorney licensed to practice in this state.
(4) In the instance when a defense counsel is not an attorney licensed to practice in this state, the defense counsel shall be deemed admitted on motion, subject to filing with the military judge setting forth the qualifications that counsel is all of the following:
(a) Commissioned officer of the armed forces of the United States or a component thereof.
(b) Member in good standing of the bar of the highest court of another state.
(c) Certified as a judge advocate in the Judge Advocate General's Corps of the army, air force, navy, or the marine corps, or a judge advocate as defined in this code.
(5) Trial counsel detailed to a court-martial shall be considered a prosecutor under state statutes.
322.028 Article 28—Detail or employment of reporters and interpreters. Under regulations as may be prescribed, the convening authority of a general or special court-martial or court of inquiry shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court and may detail or employ interpreters who shall interpret for the court.
322.029 Article 29—Absent and additional members. (1) 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.
(2) Whenever a general court-martial, other than a general court-martial composed of a military judge only, is reduced below 5 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 5 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.
(3) Whenever a special court-martial, other than a special court-martial composed of a military judge only, is reduced below 3 members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than 3 members, unless the accused waives the number of members. The trial shall proceed with the new members present as if no evidence had been introduced previously at the trial, unless a verbatim record of the evidence previously introduced before the members of the court or a stipulation is read to the court in the presence of the military judge, the accused, and counsel for both sides.
(4) If the military judge of a court-martial composed of a military judge only is unable to proceed with the trial because of physical disability, as a result of a challenge, or for other good cause, the trial shall proceed, subject to any applicable conditions of s. 322.016 (1) (b) or (2) (b), after the detail of a new military judge as if no evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a stipulation is read in court in the presence of the new military judge, the accused, and counsel for both sides.
SUBCHAPTER VI
PRETRIAL PROCEDURE
322.030 Article 30—Charges and specifications. (1) Charges and specifications shall be signed by a person subject to this code under oath before a commissioned officer authorized by s. 322.136 (1) to administer oaths and shall state all of the following:
(a) The signer has personal knowledge of, or has investigated, the matters set forth in the charges and specifications.
(b) The facts are true to the best of the signer's knowledge and belief.
(2) Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made in the interest of justice and discipline, and the person accused shall be informed of the charges as soon as practicable.
322.031 Article 31—Compulsory self-incrimination prohibited. (1) No person subject to this code may compel any person to incriminate himself or herself or to answer any question the answer to which may tend to incriminate him or her.
(2) No person subject to this code may interrogate or request any statement from an accused or a person suspected of an offense without first informing that person of the nature of the accusation and advising that person that the person does not have to make any statement regarding the offense of which the person is accused or suspected and that any statement made by the person may be used as evidence against the person in a trial by court-martial.
(3) No person subject to this code may compel any person to make a statement or produce evidence before any military court if the statement or evidence is not material to the issue and may tend to degrade the person.
(4) No statement obtained from any person in violation of this section or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against the person in a trial by court-martial.
322.032 Article 32—Investigation.
(1) 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 has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.
(2) 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 s. 322.038 and in regulations prescribed under that section. At that investigation, full opportunity shall be given to the accused to cross-examine witnesses against the accused, if they are available, and to present anything the accused may desire in the accused's own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy shall be given to the accused.
(3) 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 sub. (2), no further investigation of that charge is necessary under this section unless it is demanded by the accused after the accused is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in the accused's own behalf.
(4) If evidence adduced in an investigation under this section 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 afforded all of the following:
(a) Present at the investigation;
(b) Informed of the nature of each uncharged offense investigated; and
(c) Afforded the opportunities for representation, cross-examination, and presentation prescribed in sub. (2).
(5) The requirements of this section are binding on all persons administering this code but failure to follow them does not constitute jurisdictional error.
322.033 Article 33—Forwarding of charges. When a person is held for trial by general court-martial, the commanding officer shall within 8 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 general court-martial jurisdiction. If that is not practicable, the commanding officer shall report in writing to that person the reasons for delay.
322.034 Article 34—Advice of judge advocate and reference for trial. (1) 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 convening authority has been advised in writing by a judge advocate that all the following conditions are met:
(a) The specification alleges an offense under this code.
(b) The specification is warranted by the evidence indicated in the report of investigation under s. 322.032, if there is a report.
(c) A court-martial would have jurisdiction over the accused and the offense.
(2) The advice of the judge advocate under sub. (1) with respect to a specification under a charge shall include a written and signed statement by the judge advocate that does all of the following:
(a) Expressing conclusions with respect to each matter set forth in sub. (1).
(b) Recommending action that the convening authority take regarding the specification.
(3) If the specification is referred for trial, the recommendation of the judge advocate shall accompany the specification.
(4) 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 corrections, and changes in the charges and specifications as are needed to make them conform to the evidence, may be made.
322.035 Article 35—Service of charges. 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 5 days after the service of charges upon the accused, or in a special court-martial, within a period of 3 days after the service of charges upon the accused.
SUBCHAPTER VII
TRIAL PROCEDURE
322.036 Article 36—Governor may prescribe regulations. 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 by regulations, or as otherwise provided by law, which shall apply the principles of law and the rules of evidence generally recognized in military criminal cases in the courts of the armed forces but which may not be contrary to or inconsistent with this code.
322.037 Article 37—Unlawfully influencing action of court. (1) No authority convening a general, special, or summary court-martial, nor any other commanding officer, or officer serving on the commanding officer's staff, may censure, reprimand, or admonish the court or any member, the military judge, or counsel, with respect to the findings or sentence adjudged by the court or with respect to any other exercise of its or their functions in the conduct of the proceedings. No person subject to this code may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or court of inquiry or any member, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to their judicial acts. The foregoing provisions of the subsection shall not apply with respect to the any of the following:
(a) General instructional or informational courses in military justice if the courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial.
(b) Statements and instructions given in open court by the military judge, summary court-martial officer, or counsel.
(2) 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 transfer of a member of the state military forces, or in determining whether a member of the state military forces should be retained on active status, no person subject to this code may, in preparing any report, do any of the following:
(a) Consider or evaluate the performance of duty of any member as a member of a court-martial or witness.
(b) Give a less favorable rating or evaluation of any counsel of the accused because of zealous representation before a court-martial.
322.038 Article 38—Duties of trial counsel and defense counsel. (1) The trial counsel of a general or special court-martial shall be an attorney licensed to practice in this state and shall prosecute in the name of the state, and shall, under the direction of the court, prepare the record of the proceedings.
(2) (a) The accused has the right to be represented in defense before a general or special court-martial or at an investigation under s. 322.032.
(b) The accused may be represented by civilian counsel at the provision and expense of the accused.
(c) The accused may be represented by any of the following:
1. Military counsel detailed under s. 322.027.
2. Military counsel of the accused's own selection if that counsel is reasonably available as determined under par. (g).
(d) If the accused is represented by civilian counsel, military counsel detailed or selected under par. (c) shall act as associate counsel unless excused by military judge at the request of the accused.
(e) Except as provided under par. (f), if the accused is represented by military counsel of his or her own selection under par. (c) 2., any military counsel detailed under par. (c) 1. shall be excused.
(f) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under s. 322.027 to detail counsel, in that person's sole discretion may do any of the following:
1. Detail additional military counsel as assistant defense counsel.
2. If the accused is represented by military counsel of the accused's own selection under par. (c) 2., may approve a request from the accused that military counsel detailed under par. (c) 1. act as associate defense counsel.
(g) The senior force judge advocate of the same force of which the accused is a member, shall determine whether the military counsel selected by an accused is reasonably available.
