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.
AB400,126,7
6(2) The party at whose instance a deposition is to be taken shall give to every
7other party reasonable written notice of the time and place for taking the deposition.
AB400,126,12
8(3) A duly authenticated deposition taken upon reasonable notice to the other
9parties, so far as otherwise admissible under the rules of evidence, may be read in
10evidence or, in the case of audiotape, videotape, digital image or file, or similar
11material, may be played in evidence before any military court, if any of the following
12apply:
AB400,126,1413
(a) The witness resides or is beyond the State in which the court is ordered to
14sit, or beyond one hundred miles from the place of trial or hearing;
AB400,126,1815
(b) The witness by reason of death, age, sickness, bodily infirmity,
16imprisonment, military necessity, non amenability to process, or other reasonable
17cause, is unable or refuses to appear and testify in person at the place of trial or
18hearing.
AB400,126,1919
(c) The present whereabouts of the witness is unknown.
AB400,127,2
20322.050 Article 50—Admissibility of records of courts of inquiry. (1) 21In any case not extending to the dismissal of a commissioned officer, the sworn
22testimony, contained in the duly authenticated record of proceedings of a court of
23inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise
24admissible under the rules of evidence, be read in evidence by any party before a
1court-martial if the accused was a party before the court of inquiry and if the same
2issue was involved or if the accused consents to the introduction of evidence.
AB400,127,4
3(2) Testimony may be read in evidence only by the defense in cases extending
4to the dismissal of a commissioned officer.
AB400,127,5
5(3) Testimony may also be read in evidence before a court of inquiry.
AB400,127,12
6322.0505 Article 50a—Defense of mental disease or defect. (1) The
7accused has an affirmative defense of mental disease or defect in a trial by
8court-martial if, at the time of the commission of the acts constituting the offense,
9the accused, as a result of a mental disease or defect, lacked substantial capacity
10either to appreciate the wrongfulness of his or her conduct or to conform his or her
11conduct to the requirements of the law. Mental disease or defect does not otherwise
12constitute a defense.
AB400,127,14
13(2) The accused has the burden of proving the defense of mental disease or
14defect to a reasonable certainty by the greater weight of the credible evidence.
AB400,127,18
15(3) Whenever lack of mental disease or defect of the accused with respect to an
16offense is properly at issue, the military judge shall instruct the members of the
17military court as to the defense of mental disease or defect under this section and
18charge them to find the accused any one of the following:
AB400,127,1919
(a) Guilty.
AB400,127,2020
(b) Not guilty.
AB400,127,2121
(c) Not guilty by reason of mental disease or defect.
AB400,128,2
22(4) Sub. (3) does not apply to a court-martial composed of a military judge only.
23In the case of a court-martial composed of a military judge only or a summary
24court-martial officer, whenever mental disease or defect of the accused with respect
1to an offense is properly at issue, the military judge or summary court-martial officer
2shall find the accused of any of the following:
AB400,128,44
(b) Not guilty.
AB400,128,55
(c) Not guilty by reason of mental disease or defect.
AB400,128,7
6(5) Notwithstanding the provisions of s. 322.052, the accused shall be found not
7guilty by reason of mental disease or defect if any of the following apply:
AB400,128,108
(a) A majority of the members of the court-martial present at the time the vote
9is taken determines that the defense of mental disease or defect has been
10established.
AB400,128,1311
(b) In the case of a court-martial composed of a military judge only or a
12summary court-martial officer, the military judge or summary court-martial officer
13determines that the defense of mental disease or defect has been established.
AB400,128,18
14322.051 Article 51—Voting and rulings. (1) Voting by members of a
15general or special court-martial on the findings and on the sentence shall be by
16secret written ballot. The junior member of the court shall count the votes. The count
17shall be checked by the president, who shall as soon as possible announce the result
18of the ballot to the members of the court.