Subchapter VII. Trial Procedure.

836. ARTICLE 36. PRESIDENT MAY PRESCRIBE RULES   

Pretrial, trial, and post trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United Federation Of Planets district courts, but which may not be contrary to or inconsistent with this chapter.

All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress.


837. ARTICLE 37. UNLAWFULLY INFLUENCING ACTION OF COURT

No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.

In the preparation of an effectiveness, fitness, or efficiency report on any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member, as counsel, represented any accused before a court-martial.


838. ARTICLE 38. DUTIES OF TRIAL COUNSEL AND DEFENSE COUNSEL

The trial counsel of a general or special court-martial shall prosecute in the name of the United Federation Of Planets, and shall, under the direction of the court, prepare the record of the proceedings.

The accused has the right to be represented in his defense before a general or special court-martial or at an investigation under section 832 of this title (article 32) as provided in this subsection.

The accused may be represented by civilian counsel if provided by him.

The accused may be represented--
     (A) by military counsel detailed under section 827 of this title (article 27); or
     (B) by military counsel of his own selection if that counsel is reasonably available (as determined under regulations prescribed under paragraph (7)).

If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (3) shall act as associate counsel unless excused at the request of the accused.

Except as provided under paragraph (6), if the accused is represented by military counsel of his own selection under paragraph (3)(B), any military counsel detailed under paragraph (3)(A) shall be excused.

The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section 827 of this title (article 27) to detail counsel in his sole discretion--
    (A) may detail additional military counsel as assistant defense counsel; and
    (B) if the accused is represented by military counsel of his own selection under paragraph (3)(B), may approve a request from the accused that military counsel detailed under paragraph (3)(A) act as associate defense counsel.

The Secretary concerned shall, by regulation, define "reasonably available" for the purpose of paragraph (3)(B) and establish procedures for determining whether the military counsel selected by an accused under that paragraph is reasonably available. Such regulations may not prescribe any limitation based on the reasonable availability of counsel solely on the grounds that the counsel selected by the accused if from an armed force other than the armed force of which the accuse is a member. To the maximum extent practicable, such regulations shall establish uniform policies among the armed forces while recognizing the differences in the circumstances and needs of the various armed forces. The Secretary concerned shall submit copies of regulations prescribed under this paragraph to the Committees on Starfleet of the Federation Senate and House of Representatives.

In any court-martial proceeding resulting in a conviction, the defense counsel-
    (A) may foreword for attachment to the record of proceedings a brief of such matters as he determines should be considered in behalf of the accused on review (including any objections to the contents of the record which he considers appropriate);
    (B) may assist the accused in the submission of any mater under section 860 of this title (article 60); and
    (C) may take other action authorized by this chapter.

An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he is qualified to be a trial counsel as required by section 827 of this title (article 27), perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel of the court. An assistant trial counsel of a special court- martial may perform any duty of the trial counsel.

An assistant defense counsel of a general or special court-martial may, under the direction of the defense counsel or when he is qualified to be the defense counsel as required by section 827 of this title (article 27), perform any duty imposed by law, regulation, or custom of the service upon counsel for the accused.


839. ARTICLE 39. SESSIONS

At any time after the service of charges which have been referred for trial by court-martial composed of a military judge and members, the military judge may, subject to section 835 of this title (article 35), call the court into session without the presence of the members for the purpose of--
    (A) hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;
    (B) hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members of the court;
    (C) if permitted by regulations of the Secretary concerned, holding the arraignment and receiving the pleas of the accused; and
    (D) performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to section 836 of this title (article 36) and which does not require the presence of the members of the court.
These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made part of the record.

When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and in cases in which a military judge has been detailed to the court, the military judge.


840. ARTICLE 40. CONTINUANCES.

The military judge or a court-martial without a military judge may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.


841. ARTICLE 41. CHALLENGES

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 if none, the court, shall determine the relevance and validity of the challenges for cause, and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.

Each accused and the trial counsel is entitled to one preemptory challenge, but the military judge may not be challenged except for cause.


842. ARTICLE 42. OATHS

Before performing their respective duties, military judges, members of general and special courts-martial, trial counsel, assistant trial counsel, defense counsel, assistant or associate defense counsel, reporters, and interpreters shall take an oath to perform their duties faithfully. The form of the oath, the time and place of the taking thereof, the manner of recording the same, and whether the oath shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulations of the Secretary concerned. These regulations may provide that an oath to perform faithfully duties as a military judge, trial counsel, assistant trial counsel, defense counsel, or assistant or associate defense counsel may be taken at any time by any judge advocate or other person certified to be qualified or competent for duty, and if such an oath is taken it need not again be taken at the time the judge advocate, or other person is detailed to that duty.

Each witness before a court-martial shall be examined on oath.


* 843. ARTICLE 43. STATUTE OF LIMITATIONS

A person charged with absence without leave or missing movement in time of war, or with any offense punishable by death, may be tried at any time without limitation.

Except as otherwise provided in this section (article), a person charged with an offense is not liable to be tried by court-martial if the offense was committed more than five years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.

A person charged with an offense is not liable to be punished under section 815 of this title (article 15) if the offense was committed more than two years before the imposition of punishment.

Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in this section (article).

Periods in which the accused was absent from territory in which the U.F.P. has the authority to apprehend him, 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 this article.

For an offense the trial of which in time of war is certified to the President by the Secretary concerned to be detrimental to the prosecution of the war or inimical to the national security, the period of limitation prescribed in this article is extended to six months after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.

When the U.F.P. is at war, the running of any statute of limitations applicable to any offense under this chapter--
     (A) involving fraud or attempted fraud against the U.F.P. or any agency thereof in any manner, whether by conspiracy or not;
     (B) committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the U.F.P.; or
    (C) committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or Government agency; is suspended until three years after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.

If charges or specifications are dismissed or insufficient for any cause and the period prescribed by the applicable statute of limitations--
     (A) has expired; or
     (B) will expire within 180 days after the date of dismissal of the charges and specifications, trial and punishment under new charges and specifications are not bared by the statute of limitations if the conditions specified in paragraph (2) are met.

The conditions referred to in paragraph (1) are that the new charges and specifications must--
    (A) be received by an officer exercising summary court-martial jurisdiction over the command within 180 days after dismissal of the charges or specifications; and
    (B) allege the same acts or omissions that were alleged in the dismissed charges or specifications (or allege acts or omissions that were included in the dismissed charges or specifications).




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