AB400,113,65
(a) The signer has personal knowledge of, or has investigated, the matters set
6forth in the charges and specifications.
AB400,113,77
(b) The facts are true to the best of the signer's knowledge and belief.
AB400,113,11
8(2) Upon the preferring of charges, the proper authority shall take immediate
9steps to determine what disposition should be made in the interest of justice and
10discipline, and the person accused shall be informed of the charges as soon as
11practicable.
AB400,113,14
12322.031 Article 31—Compulsory self-incrimination prohibited. (1) No
13person subject to this code may compel any person to incriminate himself or herself
14or to answer any question the answer to which may tend to incriminate him or her.
AB400,113,20
15(2) No person subject to this code may interrogate or request any statement
16from an accused or a person suspected of an offense without first informing that
17person of the nature of the accusation and advising that person that the person does
18not have to make any statement regarding the offense of which the person is accused
19or suspected and that any statement made by the person may be used as evidence
20against the person in a trial by court-martial.
AB400,113,23
21(3) No person subject to this code may compel any person to make a statement
22or produce evidence before any military court if the statement or evidence is not
23material to the issue and may tend to degrade the person.
AB400,114,3
1(4) No statement obtained from any person in violation of this section or
2through the use of coercion, unlawful influence, or unlawful inducement may be
3received in evidence against the person in a trial by court-martial.
AB400,114,9
4322.032 Article 32—Investigation.
(1) No charge or specification may be
5referred to a general court-martial for trial until a thorough and impartial
6investigation of all the matters set forth has been made. This investigation shall
7include inquiry as to the truth of the matter set forth in the charges, consideration
8of the form of charges, and a recommendation as to the disposition which should be
9made of the case in the interest of justice and discipline.
AB400,114,19
10(2) The accused shall be advised of the charges against the accused and of the
11right to be represented at that investigation by counsel. The accused has the right
12to be represented at that investigation as provided in s. 322.038 and in regulations
13prescribed under that section. At that investigation, full opportunity shall be given
14to the accused to cross-examine witnesses against the accused, if they are available,
15and to present anything the accused may desire in the accused's own behalf, either
16in defense or mitigation, and the investigating officer shall examine available
17witnesses requested by the accused. If the charges are forwarded after the
18investigation, they shall be accompanied by a statement of the substance of the
19testimony taken on both sides and a copy shall be given to the accused.
AB400,115,2
20(3) If an investigation of the subject matter of an offense has been conducted
21before the accused is charged with the offense, and if the accused was present at the
22investigation and afforded the opportunities for representation, cross-examination,
23and presentation prescribed in sub. (2), no further investigation of that charge is
24necessary under this section unless it is demanded by the accused after the accused
25is informed of the charge. A demand for further investigation entitles the accused
1to recall witnesses for further cross-examination and to offer any new evidence in
2the accused's own behalf.
AB400,115,6
3(4) If evidence adduced in an investigation under this section indicates that
4the accused committed an uncharged offense, the investigating officer may
5investigate the subject matter of that offense without the accused having first been
6charged with the offense if the accused is afforded all of the following:
AB400,115,77
(a) Present at the investigation;
AB400,115,88
(b) Informed of the nature of each uncharged offense investigated; and
AB400,115,109
(c) Afforded the opportunities for representation, cross-examination, and
10presentation prescribed in sub. (2).
AB400,115,12
11(5) The requirements of this section are binding on all persons administering
12this code but failure to follow them does not constitute jurisdictional error.
AB400,115,18
13322.033 Article 33—Forwarding of charges. When a person is held for trial
14by general court-martial, the commanding officer shall within 8 days after the
15accused is ordered into arrest or confinement, if practicable, forward the charges,
16together with the investigation and allied papers, to the person exercising general
17court-martial jurisdiction. If that is not practicable, the commanding officer shall
18report in writing to that person the reasons for delay.
AB400,115,24
19322.034 Article 34—Advice of judge advocate and reference for trial. 20(1) Before directing the trial of any charge by general court-martial, the convening
21authority shall refer it to a judge advocate for consideration and advice. The
22convening authority may not refer a specification under a charge to a general
23court-martial for trial unless the convening authority has been advised in writing
24by a judge advocate that all the following conditions are met:
AB400,115,2525
(a) The specification alleges an offense under this code.
AB400,116,2
1(b) The specification is warranted by the evidence indicated in the report of
2investigation under s. 322.032, if there is a report.
AB400,116,33
(c) A court-martial would have jurisdiction over the accused and the offense.
AB400,116,6
4(2) The advice of the judge advocate under sub. (1) with respect to a
5specification under a charge shall include a written and signed statement by the
6judge advocate that does all of the following:
AB400,116,77
(a) Expressing conclusions with respect to each matter set forth in sub. (1).
AB400,116,98
(b) Recommending action that the convening authority take regarding the
9specification.
AB400,116,11
10(3) If the specification is referred for trial, the recommendation of the judge
11advocate shall accompany the specification.
AB400,116,15
12(4) If the charges or specifications are not correct formally or do not conform
13to the substance of the evidence contained in the report of the investigating officer,
14formal corrections, and changes in the charges and specifications as are needed to
15make them conform to the evidence, may be made.
AB400,116,20
16322.035 Article 35—Service of charges. The trial counsel shall serve or
17caused to be served upon the accused a copy of the charges. No person may, against
18the person's objection, be brought to trial before a general court-martial case within
19a period of 5 days after the service of charges upon the accused, or in a special
20court-martial, within a period of 3 days after the service of charges upon the accused.
AB400,116,2221
SUBCHAPTER VII
22
TRIAL PROCEDURE
AB400,117,3
23322.036 Article 36—Governor may prescribe regulations. Pretrial, trial,
24and post-trial procedures, including modes of proof, for courts-martial cases arising
25under this code, and for courts of inquiry, may be prescribed by the governor by
1regulations, or as otherwise provided by law, which shall apply the principles of law
2and the rules of evidence generally recognized in military criminal cases in the courts
3of the armed forces but which may not be contrary to or inconsistent with this code.
AB400,117,14
4322.037 Article 37—Unlawfully influencing action of court. (1) No
5authority convening a general, special, or summary court-martial, nor any other
6commanding officer, or officer serving on the commanding officer's staff, may
7censure, reprimand, or admonish the court or any member, the military judge, or
8counsel, with respect to the findings or sentence adjudged by the court or with respect
9to any other exercise of its or their functions in the conduct of the proceedings. No
10person subject to this code may attempt to coerce or, by any unauthorized means,
11influence the action of a court-martial or court of inquiry or any member, in reaching
12the findings or sentence in any case, or the action of any convening, approving, or
13reviewing authority with respect to their judicial acts. The foregoing provisions of
14the subsection shall not apply with respect to the any of the following:
AB400,117,1715
(a) General instructional or informational courses in military justice if the
16courses are designed solely for the purpose of instructing members of a command in
17the substantive and procedural aspects of courts-martial.
AB400,117,1918
(b) Statements and instructions given in open court by the military judge,
19summary court-martial officer, or counsel.
AB400,118,2
20(2) In the preparation of an effectiveness, fitness, or efficiency report, or any
21other report or document used in whole or in part for the purpose of determining
22whether a member of the state military forces is qualified to be advanced in grade,
23or in determining the assignment or transfer of a member of the state military forces,
24or in determining whether a member of the state military forces should be retained
1on active status, no person subject to this code may, in preparing any report, do any
2of the following:
AB400,118,43
(a) Consider or evaluate the performance of duty of any member as a member
4of a court-martial or witness.
AB400,118,65
(b) Give a less favorable rating or evaluation of any counsel of the accused
6because of zealous representation before a court-martial.
AB400,118,10
7322.038 Article 38—Duties of trial counsel and defense counsel. (1) The
8trial counsel of a general or special court-martial shall be an attorney licensed to
9practice in this state and shall prosecute in the name of the state, and shall, under
10the direction of the court, prepare the record of the proceedings.
AB400,118,12
11(2) (a) The accused has the right to be represented in defense before a general
12or special court-martial or at an investigation under s. 322.032.
AB400,118,1413
(b) The accused may be represented by civilian counsel at the provision and
14expense of the accused.
AB400,118,1515
(c) The accused may be represented by any of the following:
AB400,118,1616
1. Military counsel detailed under s. 322.027.
AB400,118,1817
2. Military counsel of the accused's own selection if that counsel is reasonably
18available as determined under par. (g).
AB400,118,2119
(d) If the accused is represented by civilian counsel, military counsel detailed
20or selected under par. (c) shall act as associate counsel unless excused by military
21judge at the request of the accused.
AB400,118,2422
(e) Except as provided under par. (f), if the accused is represented by military
23counsel of his or her own selection under par. (c) 2., any military counsel detailed
24under par. (c) 1. shall be excused.
AB400,119,3
1(f) The accused is not entitled to be represented by more than one military
2counsel. However, the person authorized under regulations prescribed under s.
3322.027 to detail counsel, in that person's sole discretion may do any of the following:
AB400,119,44
1. Detail additional military counsel as assistant defense counsel.
AB400,119,75
2. If the accused is represented by military counsel of the accused's own
6selection under par. (c) 2., may approve a request from the accused that military
7counsel detailed under par. (c) 1. act as associate defense counsel.
AB400,119,108
(g) The senior force judge advocate of the same force of which the accused is a
9member, shall determine whether the military counsel selected by an accused is
10reasonably available.
AB400,119,12
11(3) In any court-martial proceeding resulting in a conviction, the defense
12counsel may do any of the following:
AB400,119,1513
(a) Forward for attachment to the record of proceedings a brief of matters as
14counsel determines should be considered in behalf of the accused on review, including
15any objection to the contents of the record which counsel considers appropriate.
AB400,119,1616
(b) Assist the accused in the submission of any matter under s. 322.060.
AB400,119,1717
(c) Take other action authorized by this code.
AB400,119,21
18322.039 Article 39—Sessions. (1) At any time after the service of charges
19which have been referred for trial to a court-martial composed of a military judge
20and members, the military judge may, subject to s. 322.035, call the court into session
21without the presence of the members for the purpose of any of the following:
AB400,119,2322
(a) Hearing and determining motions raising defenses or objections which are
23capable of determination without trial of the issues raised by a plea of not guilty.
AB400,120,3
1(b) Hearing and ruling upon any matter which may be ruled upon by the
2military judge under this code, whether or not the matter is appropriate for later
3consideration or decision by the members of the court.
AB400,120,44
(c) Holding the arraignment and receiving the pleas of the accused.
AB400,120,65
(d) Performing any other procedural function which does not require the
6presence of the members of the court under this code.
AB400,120,10
7(2) These proceedings shall be conducted in the presence of the accused, the
8defense counsel, and the trial counsel and shall be made a part of the record. These
9proceedings may be conducted notwithstanding the number of court members and
10without regard to s. 322.029.
AB400,120,15
11(3) When the members of a court-martial deliberate or vote, only the members
12may be present. All other proceedings, including any other consultation of the
13members of the court with counsel or the military judge, shall be made a part of the
14record and shall be in the presence of the accused, the defense counsel, the trial
15counsel, and the military judge.
AB400,120,18
16322.040 Article 40—Continuances. The military judge of a court-martial
17or a summary court-martial may, for reasonable cause, grant a continuance to any
18party for time, and as often, as may appear to be just.
AB400,120,24
19322.041 Article 41—Challenges.
(1) (a) The military judge and members
20of a general or special court-martial may be challenged by the accused or the trial
21counsel for cause stated to the court. The military judge or the court shall determine
22the relevancy and validity of challenges for cause and may not receive a challenge
23to more than one person at a time. Challenges by the trial counsel shall ordinarily
24be presented and decided before those by the accused are offered.
AB400,121,5
1(b) If exercise of a challenge for cause reduces the court below the minimum
2number of members required by s. 322.016, all parties shall, notwithstanding s.
3322.029, either exercise or waive any challenge for cause then apparent against the
4remaining members of the court before additional members are detailed to the court.
5However, peremptory challenges shall not be exercised at that time.
AB400,121,8
6(2) (a) Each accused and the trial counsel are entitled initially to one
7peremptory challenge of members of the court. The military judge may not be
8challenged except for cause.
AB400,121,139
(b) If exercise of a peremptory challenge reduces the court below the minimum
10number of members required by s. 322.016, the parties shall, notwithstanding s.
11322.029, either exercise or waive any remaining peremptory challenge, not
12previously waived, against the remaining members of the court before additional
13members are detailed to the court.
AB400,121,1714
(c) Whenever additional members are detailed to the court, and after any
15challenges for cause against additional members are presented and decided, each
16accused and the trial counsel are entitled to one peremptory challenge against
17members not previously subject to peremptory challenge.
AB400,122,5
18322.042 Article 42—Oaths or affirmations. (1) Before performing their
19respective duties, military judges, general and special courts-martial members, trial
20counsel, defense counsel, reporters, and interpreters shall take an oath or
21affirmation in the presence of the accused to perform their duties faithfully. The form
22of the oath or affirmation, the time and place of the taking, the manner of recording
23the same, and whether the oath or affirmation shall be taken for all cases in which
24these duties are to be performed or for a particular case, shall be as prescribed in
25regulation or as provided by law. These regulations may provide that an oath or
1affirmation to perform faithfully the duties as a military judge, trial counsel, or
2defense counsel may be taken at any time by any judge advocate or other person
3certified or designated to be qualified or competent for the duty, and if an oath or
4affirmation is taken, it need not again be taken at the time the judge advocate or
5other person is detailed to that duty.
AB400,122,7
6(2) Each witness before a court-martial shall be examined under oath or
7affirmation.
AB400,122,13
8322.043 Article 43—Statute of limitations. (1) Except as otherwise
9provided in this section, a person charged with any offense is not liable to be tried
10by court-martial or punished under s. 322.015 if the offense was committed more
11than 3 years before the receipt of sworn charges and specifications by an officer
12exercising court-martial jurisdiction over the command or before the imposition of
13punishment under s. 322.015.
AB400,122,16
14(2) Periods in which the accused is absent without authority or fleeing from
15justice shall be excluded in computing the period of limitation prescribed in this
16section.
AB400,122,20
17(3) Periods in which the accused was absent from territory in which the state
18has the authority to apprehend him or her, or in the custody of civil authorities, or
19in the hands of the enemy, shall be excluded in computing the period of limitation
20prescribed in this section.
AB400,122,25
21(4) When the United States is at war based on a congressional declaration or
22by presidential declaration under the Global War on Terror, the running of any
23statute of limitations is suspended until 2 years after the termination of hostilities,
24as proclaimed by the president or by a joint resolution of congress, and is applicable
25to any offense under this code under any of the following circumstances:
AB400,123,2
1(a) Involving fraud or attempted fraud against the United States, any state, or
2any agency of either in any manner, whether by conspiracy or not.
AB400,123,53
(b) Committed in connection with the acquisition, care, handling, custody,
4control, or disposition of any real or personal property of the United States or any
5state.
AB400,123,106
(c) Committed in connection with the negotiation, procurement, award,
7performance, payment, interim financing, cancellation, or other termination or
8settlement, of any contract, subcontract, or purchase order which is connected with
9or related to the prosecution of the war, or with any disposition of termination
10inventory by any war contractor or government agency.
AB400,123,15
11(5) (a) If charges or specifications are dismissed as defective or insufficient for
12any cause and the period prescribed by the applicable statute of limitations has
13expired, or will expire within 180 days after the date of dismissal of the charges and
14specifications, trial and punishment under new charges and specifications are not
15barred by the statute of limitations if the conditions specified in par. (b) are met.
AB400,123,1716
(b) The conditions referred to in par. (a) are that the new charges and
17specifications satisfy all of the following:
AB400,123,1918
1. Be received by an officer exercising summary court-martial jurisdiction over
19the command within 180 days after the dismissal of the charges or specifications.
AB400,123,2220
2. Allege the same acts or omissions that were alleged in the dismissed charges
21or specifications, or allege acts or omissions that were included in the dismissed
22charges or specifications.
AB400,123,24
23322.044 Article 44—Former jeopardy. (1) No person may, without his or
24her consent, be tried a 2nd time for the same offense.
AB400,124,3
1(2) No proceeding in which an accused has been found guilty by a court-martial
2upon any charge or specification is a trial under this section until the finding of guilty
3has become final after review of the case has been fully completed.
AB400,124,7
4(3) A proceeding which, after the introduction of evidence but before a finding,
5is dismissed or terminated by the convening authority or on motion of the
6prosecution for failure of available evidence or witnesses without any fault of the
7accused is a trial under this section.
AB400,124,13
8322.045 Article 45—Pleas of the accused. (1) If an accused after
9arraignment makes an irregular pleading, or after a plea of guilty sets up matter
10inconsistent with the plea, or if it appears that the accused has entered the plea of
11guilty improvidently or through lack of understanding of its meaning and effect, or
12if the accused fails or refuses to plead, a plea of not guilty shall be entered in the
13record, and the court shall proceed as though the accused had pleaded not guilty.
AB400,124,20
14(2) With respect to any charge or specification to which a plea of guilty has been
15made by the accused and accepted by the military judge or by a court-martial
16without a military judge, a finding of guilty of the charge or specification may be
17entered immediately without vote. This finding shall constitute the finding of the
18court unless the plea of guilty is withdrawn prior to announcement of the sentence,
19in which event, the proceedings shall continue as though the accused had pleaded
20not guilty.
AB400,125,6
21322.046 Article 46—Opportunity to obtain witnesses and other
22evidence. The trial counsel, the defense counsel, and the court-martial shall have
23equal opportunity to obtain witnesses and other evidence as prescribed by
24regulations and provided by law. Process issued in court-martial cases to compel
25witnesses to appear and testify and to compel the production of other evidence shall
1apply the principles of law and the rules of courts-martial generally recognized in
2military criminal cases in the courts of the armed forces of the United States, but
3which may not be contrary to or inconsistent with this code. Process shall run to any
4part of the United States, or the territories, commonwealths, and possessions, and
5may be executed by civil officers as prescribed by the laws of the place where the
6witness or evidence is located or of the United States.
AB400,125,9
7322.047 Article 47—Refusal to appear or testify. (1) Any person not
8subject to this code may be punished by the military court in the same manner as a
9court of the state, if all of the following apply to that person:
AB400,125,1210
(a) Has been duly subpoenaed to appear as a witness or to produce books and
11records before a court-martial or court of inquiry, or before any military or civil
12officer designated to take a deposition to be read in evidence before a court.
AB400,125,1413
(b) Has been duly paid or tendered the fees and mileage of a witness at the rates
14allowed to witnesses attending a court of the state.
AB400,125,1715
(c) Willfully neglects or refuses to appear, or refuses to qualify as a witness or
16to testify or to produce any evidence which that person may have been legally
17subpoenaed to produce.
AB400,125,19
18(2) The fees and mileage of witnesses shall be advanced or paid out of the
19appropriations for the compensation of witnesses.
AB400,125,25
20322.048 Article 48—Contempt. A military judge may punish for contempt
21any person who uses any menacing word, sign, or gesture in its presence, or who
22disturbs its proceedings by any riot or disorder. A person subject to this code may
23be punished for contempt by confinement not to exceed 30 days or a fine of $100, or
24both. A person not subject to this code may be punished for contempt by a military
25court in the same manner as a court of the state.
AB400,126,5
1322.049 Article 49—Depositions. (1) At any time after charges have been
2signed as provided in s. 322.030, any party may take oral or written depositions
3unless the military judge or summary court-martial officer hearing the case or, if the
4case is not being heard, an authority competent to convene a court-martial for the
5trial of those charges forbids it for good cause.