Title 13A. Maryland Code of Military Justice — Subtitle 7. Trial Procedure

No authority convening a general, special, or summary court–martial, nor any other commanding officer, or officer serving on the staff thereof, may censure, reprimand, or admonish the court or any member, the military judge, or counsel thereof, 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.

A person subject to this title may not attempt to coerce or, by any unauthorized means, influence the action of a court–martial or court of inquiry 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 their judicial acts.

Paragraphs (1) and (2) of this subsection do not apply with respect to:

consider or evaluate the performance of duty of any such member as a member of a court–martial or witness therein; or

give a less favorable rating or evaluation of any counsel of the accused because of zealous representation before a court–martial.

be a member in good standing of the State bar;

prosecute in the name of the State; and

under the direction of the court, prepare the record of the proceedings.

The accused has the right to be represented in defense before a general or special court–martial or at an investigation under § 13A–603 of this title as provided in this subsection.

The accused may be represented by civilian counsel at the provision and expense of the accused.

The accused may be represented by military counsel:

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

Except as provided under paragraph (6) of this subsection, if the accused is represented by military counsel of the accused’s own selection under paragraph (3)(ii) of this subsection, any military counsel detailed under paragraph (3)(i) of this subsection shall be excused.

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.

may forward for attachment to the record of proceedings a brief of such matters as counsel determines should be considered on behalf of the accused on review, including any objection to the contents of the record that counsel considers appropriate;

may assist the accused in the submission of any matter under § 13A–902 of this title; and

may take other action authorized by this title.

hearing and determining motions raising defenses or objections that are capable of determination without trial of the issues raised by a plea of not guilty;

hearing and ruling on any matter that may be ruled on by the military judge under this title, whether or not the matter is appropriate for later consideration or decision by the members of the court;

holding the arraignment and receiving the pleas of the accused;

conducting a sentencing proceeding and sentencing the accused under § 13A–718 of this subtitle; and

performing any other procedural function that does not require the presence of the members of the court under this title.

shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record; and

may be conducted notwithstanding the number of court members and without regard to § 13A–508 of this title.

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 the military judge.

If exercise of a peremptory challenge reduces the court below the number of members required by § 13A–401 of this title, the parties shall, notwithstanding § 13A–508 of this title, either exercise or waive any remaining peremptory challenge, not previously waived, against the remaining members of the court before additional members are detailed to the court.

Whenever additional members are detailed to the court, and after any challenges for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to one peremptory challenge against members not previously subject to peremptory challenge.

Before performing their respective duties, military judges, general and special courts–martial members, trial counsel, defense counsel, reporters, and interpreters shall take an oath or affirmation in the presence of the accused to perform their duties faithfully.

The form of the oath or affirmation, the time and place of the taking thereof, the manner of recording the same, and whether the oath or affirmation shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulation or as provided by law.

The regulations may provide that an oath or affirmation to perform faithfully the duties as a military judge, trial counsel, or defense counsel may be taken at any time by any judge advocate or other person certified or designated to be qualified or competent for the duty, and if such an oath or affirmation is taken, it need not again be taken at the time the judge advocate or other person is detailed to that duty.

the receipt of sworn charges and specifications by an officer exercising court–martial jurisdiction over the command; or

the imposition of punishment under § 13A–301 of this title.

If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations has expired or 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 barred by the statute of limitations if the conditions specified in paragraph (2) of this subsection are met.

The conditions referred to in paragraph (1) of this subsection are that the new charges and specifications must:

A court–martial with a military judge alone is a trial in the sense of this section if, without fault of the accused, after introduction of evidence and before announcement of findings under § 13A–718 of this subtitle, the case is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses.

A court–martial with a military judge and members is a trial in the sense of this section if, without fault of the accused, after the members, having taken an oath as members under § 13A–707 of this subtitle and after completion of challenges under § 13A–706 of this subtitle, are impaneled, and before announcement of findings under § 13A–718 of this subtitle, the case is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses.

With respect to any 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 be entered immediately without 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.

Any subpoena or other process issued under this title will pertain only to military personnel or military property.

Except as otherwise authorized by the court for good cause, every subpoena or other process issued under this section shall be on a form similar to that which courts of the State having criminal jurisdiction may issue or properly accept.

The form of a subpoena shall contain:

Every subpoena or other process issued under this section shall run to any part of the United States and to the commonwealths and possessions of the United States.

before a court–martial, military commission, or court of inquiry;

at a deposition under § 13A–714 of this subtitle; or

as otherwise authorized under this title.

A subpoena or other process may be issued to compel the production of evidence:

An investigative subpoena under paragraph (1)(iii) of this subsection may be issued before referral of charges to a court–martial only if a general court–martial convening authority has authorized counsel for the government to issue such a subpoena or a military judge issues such a subpoena pursuant to § 13A–602 of this title.

With respect to an investigation of an offense under this title, a military judge detailed in accordance with § 13A–505 or § 13A–602 of this title may issue warrants or court orders for the contents of, and records concerning, wire or electronic communications in the same manner as such warrants and orders may be issued by a district court of the United States under Chapter 121, Title 18 of the United States Code, subject to such limitations as the Adjutant General may prescribe by regulation.

order that the subpoena or other process be modified or withdrawn, as appropriate; or

order the person to comply with the subpoena or other process.

that the witness resides or is beyond the State in which the court is ordered to sit, or beyond 100 miles from the place of trial or hearing;

that the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause, is unable or refuses to appear and testify in person at the place of trial or hearing; or

that the present whereabouts of the witness are unknown.

Representation of the parties with respect to a deposition shall be by counsel detailed in the same manner as trial counsel and defense counsel are detailed under § 13A–506 of this title.

The accused shall have the right to be represented by civilian or military counsel in the same manner as such counsel are provided for in § 13A–703 of this subtitle.

Subject to paragraphs (2) and (3) of this subsection, in any case 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 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.

Testimony described in paragraph (1) of this subsection may be read in evidence:

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 severe 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.

Voting by members of a general or special court–martial on the findings and on the sentence 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 shall rule on all questions of law and all interlocutory questions arising during the proceedings.

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 § 13A–717 of this subtitle, beginning with the junior in rank.

the accused must be presumed to be innocent until guilt is established by legal and competent evidence beyond a reasonable doubt;

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 the accused must be acquitted;

if there is a 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

the burden of proof to establish the guilt of the accused beyond reasonable doubt is on the State.

Subsections (a), (b), and (c) of this section do not apply to a court–martial composed of a military judge only.

The military judge of a court–martial composed of a military judge only 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 a court–martial composed of a military judge only shall make a general finding and shall in addition, on request, find the facts specially.

If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.

after a plea of guilty under § 13A–710 of this subtitle;

by a military judge in a court–martial with a military judge alone under § 13A–401 of this title; or

in a court–martial with members under § 13A–401 of this title, by the concurrence of at least three–fourths of the members present when the vote is taken.

Except as provided in subsection (a) of this section, subject to paragraph (2) of this subsection, all matters to be decided by members of a general or special court–martial shall be determined by a majority vote.

A reconsideration of a finding of guilty or reconsideration of a sentence, with a view toward decreasing the sentence, may be made by any lesser vote that indicates the reconsideration is not opposed by the number of votes required for that finding or sentence.

Except as provided in paragraph (2) of this subsection, if the accused is convicted of an offense in a trial by general or special court–martial, the military judge shall sentence the accused.

If the accused is convicted of an offense by general or special court–martial consisting of a military judge and members and the accused elects sentencing by members under § 13A–504 of this title, the members shall sentence the accused.

The sentence determined under this subsection constitutes the sentence of the accused.

At any time before the announcement of findings under § 13A–718 of this subtitle, the convening authority and the accused may enter into a plea agreement with respect to such matters as:

The military judge of a general or special court–martial may not participate in discussions between the parties concerning prospective terms and conditions of a plea agreement.

contains a provision that has not been accepted by both parties;

contains a provision that is not understood by the accused;

except as provided in subsection (c) of this section, contains a provision for a sentence that is less than the mandatory minimum sentence applicable to an offense referred to in § 13A–802 of this title;

is prohibited by law; or

is contrary to, or is inconsistent with, a regulation prescribed by the president with respect to terms, conditions, or other aspects of plea agreements.

the military judge may accept a plea agreement that provides for a sentence of bad conduct discharge; and

on recommendation of the trial counsel, in exchange for substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, the military judge may accept a plea agreement that provides for a sentence that is less than the mandatory minimum sentence for the offense charged.

Each general and special court–martial shall keep 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 the judge’s 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 trial counsel’s 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 that would impose such a duty on a member under this subsection.

A complete verbatim record of the proceedings and testimony shall be prepared in each general and special court–martial case resulting in a conviction.

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