Subchapter VII. Trial Procedure (continued)

845. ARTICLE 45. DOUBLE JEOPARDY

No person may, without his consent, be tried a second time for the same offense.

No proceeding in which the accused has been found guilty by court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed.

A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this article.


845. ARTICLE 45. PLEAS OF THE ACCUSED

If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.

A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty may be adjudged. With respect to any other charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may, if permitted by regulations of the Secretary concurrence, be entered immediately whither vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.


846. ARTICLE 46. OPPORTUNITY TO OBTAIN WITNESSES AND OTHER EVIDENCE
The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe. Process issued in court- martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to that which courts of the U.F.P. having criminal jurisdiction may lawfully issue and shall run to any part of the U.F.P., or the Territories, Commonwealths, and possessions.


847. ARTICLE 47. REFUSAL TO APPEAR OR TESTIFY

Any person not subject to this who--
    (A) has been dully subpoenaed to appear as a witness before a court- martial, military commission, court of inquiry, or any other military court or board, or before any military or civil officer designated to take a deposition to be read in evidence before such a court, commission, or board;
    (B) has been dully paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending the courts of the U.F.P.; and
    (C) willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce; is guilty of an offense against the U.F.P.

Any person who commits an offense named in subsection (a) shall be tried on information in a U.F.P. district court or in a court of original criminal jurisdiction in any of the Territories, Commonwealths, or possessions of the U.F.P., and jurisdiction is conferred upon those courts for that purpose. Upon conviction, such person shall be punished by a fine of not more than 1000 CR, or imprisonment for not more than six months, or both.

The U.F.P. attorney or the officer prosecuting for the United Federation Of Planets in any such court of original criminal jurisdiction shall, upon the certification of the facts to him by the military court, commission, court of inquiry, or board, file an information against and prosecute any person violating this article.

The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses.


848. ARTICLE 48. CONTEMPT'S

A court-martial, provost court, or military commission 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. The punishment may not exceed confinement for 30 days or a fine of 500 CR or both.


849. ARTICLE 49. DEPOSITIONS

At any time after charges have been signed as provided in section 830 of this title (article 30), any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, an attorney competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.

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.

Depositions may be taken before and authenticated by any military or civilian authorized by the laws of the U.F.P. or by the laws of the place where the deposition is taken to administer oaths.

A duly authenticated deposition taken upon reasonable notice to other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audiotape, videotape, or similar material, may be played in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or military board, if it appears--
    (A) that the witness resides or is beyond the State, Territory, Commonwealth in which the court, commission, or board is ordered to sit, or beyond 100 kilometers from the place of trial or hearing;
    (B) that the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, non amenability to process, or other reasonable cause is unable or refuses to appear and testify in person at the place of trial or hearing; or
    (C) that the present whereabouts of the witness is unknown.

Subject to subsection (d), a deposition may be read in evidence or, in the case of audiotape, videotape, or similar material, may be played in evidence in any case in which the death penalty is authorized but is not mandatory, whenever the convening authority directs that the case be treated as not capital, and in such a case a sentence of death may not be adjudged by the court-martial.


850. ARTICLE 50. ADMISSIBILITY OF RECORDS OF COURTS OF INQUIRY

In any case not capital and 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 evidence, be read in evidence by any party before a court-martial or military commission if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence.

Such testimony may be read in evidence only by the defense in capital cases extending to the dismissal of a commissioned officer.

Such testimony may also be read in evidence before a court of inquiry or a military board.


* 850a. ARTICLE 50a. DEFENSE OF LACK OF MENTAL RESPONSIBILITY

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 sever mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.

The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.

Whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge, or the president of the court-martial without a military judge, shall instruct the members of the court as to the defense of lack of mental responsibility under this section and shall charge them to find the accused--
    (A) guilty;
    (B) not guilty; or
    (C) not guilty only by reason of lack of mental responsibility.

Subsection (c) 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, whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall find the accused--
    (A) guilty;
    (B) not guilty; or
    (C) not guilty only by reason of lack of mental responsibility.

Notwithstanding the provision of section 852 of this title (article 52), the accused shall be found not guilty only by reason of lack of mental responsibility if--
    (A) 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 responsibility has been established; or
    (B) in the case of court-martial composed of a military judge only, the military judge determines that the defense of lack of mental responsibility has been established.


851. ARTICLE  51. VOTING AND RULINGS

Voting by members of a general or special court-martial on the findings and on the sentence, and by members of a court-martial without a military judge upon questions of challenge, 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 to the members of the court.

The military judge and, except for questions of challenge, the president of a court-martial without a military judge shall ruse 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 lay or any interlocutory question other than the factual issue of mental responsibility of the accused, or by the president of a court-martial without a military judge upon any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court. However, the military judge or the president of a court-martial without a military judge may change his ruling at any time during the trial. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in section 852 of this title (article 52), beginning with the junior in rank.

Before a vote is taken of the findings, the military judge or the president of a court-martial without a 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--
    (A) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;
    (B) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted;
    (C) that, if there is reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and
    (D) that the burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the U.F.P.

Subsections (a), (b), and (c) 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 appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is field, it will be sufficient if the findings of fact appear therein.


852. ARTICLE 52. NUMBER OF VOTES REQUIRED

No person may be convicted of an offense for which the death penalty is made mandatory by law, except by the concurrence of all the members of the court-martial present at the time the vote is taken.

No person may be convicted of any other offense, except as provided in section 845(b) of this title (article 45(b)) or by concurrence of two-thirds of the members present at the time the vote is taken.

No person may be sentenced to suffer death, except by the concurrence of all the members of the court-martial present at the time the vote is taken and for an offense in this chapter expressly made punishable by death.

No person may be sentenced by life imprisonment or to confinement for more than ten years, except by the concurrence of three-fourths of the members at the time the vote is taken.

All other sentences shall be determined by the concurrence of two- thirds of the members 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 majority vote, but a determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion for a finding of not guilty or on a motion relating to the question of the accused sanity. is a determination against the accused. A tie vote on any other question is a determination in favor of the accused.


853. ARTICLE 53. COURT TO ANNOUNCE ACTION

A court-martial shall announce its findings and sentence to the parties as soon as determined.


854. ARTICLE 54. RECORD OF TRIAL

Each general court-martial shall deep 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 his death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by that of a member if the trial counsel is unable to authenticate it by reason of his death, disability, or absence. In a court-martial consisting of only a military judge the record shall be authenticated by the court reporter under the same conditions which would impose such a duty on a member under the subsection.

Each special and summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner required by such regulations as the President may prescribe.

A complete record of the proceedings and testimony shall be prepared--
    (A) in each general court-martial case in which the sentence adjudged includes death, a dismissal, a discharge, or (if the sentence adjudged does not include a discharge) or any other punishment which exceeds that which may otherwise be adjudged by a special court-martial; and
    (B) in each special court-martial case in which the sentence includes a bad-conduct discharge.

In all other court-martial cases, the record shall contain such matters as may be prescribed by regulations of the President.

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.





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