The Military Rules of Evidence and the Rules for Courts–Martial, as promulgated in the most recent version of the Manual for Courts–Martial, shall as recognized in military criminal cases in the courts of the armed forces apply to the extent practical to courts–martial convened by the Maryland National Guard to the extent they do not conflict with State substantive law. The Governor may adopt supplemental regulations to govern matters not provided for in the Manual for Courts–Martial.

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: 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 to statements and instructions given in open court by the military judge, summary court–martial officer, or counsel. In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the State military forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the State military forces, or in determining whether a member of the State military forces should be retained on active status, no person subject to this title may, in preparing any such report: 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.

The trial counsel of a general or special court–martial shall: 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: detailed under § 13A–506 of this title; or of the accused’s own selection if that counsel is reasonably available as determined under paragraph (7) of this subsection. 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. Subject to subparagraph (ii) of this paragraph, the accused is not entitled to be represented by more than one military counsel. The person authorized under regulations adopted under § 13A–506 of this title to detail counsel, in that person’s sole discretion: may detail additional military counsel as assistant defense counsel; and if the accused is represented by military counsel of the accused’s own selection under paragraph (3)(ii) of this subsection, may approve a request from the accused that military counsel detailed under paragraph (3)(i) of this subsection act as associate defense counsel. 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. In any court–martial proceeding resulting in a conviction, the defense counsel: 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.

At any time after the service of charges that have been referred for trial to a court–martial composed of a military judge and members, the military judge may, subject § 13A–606 of this title, call the court into session without the presence of the members for the purpose of: 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. Proceedings conducted under subsection (a) of this section: 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.

The military judge of a court–martial or a summary court–martial may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.

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 shall determine the relevancy and validity of 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. Subject to subparagraph (ii) of this paragraph, if exercise of a challenge for cause reduces the court below the number of members required by § 13A–401 of this title, all parties shall, notwithstanding § 13A–508 of this title, either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court. Peremptory challenges may not be exercised at that time. Subject to subparagraph (ii) of this paragraph, each accused and the trial counsel are entitled initially to one peremptory challenge of members of the court. The military judge may not be challenged except for cause. 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. Each witness before a court–martial shall be examined under oath or affirmation.

A person charged with absence without leave or missing movement in time of war, murder, rape or sexual assault, or rape or sexual assault of a child may be punished at any time without limitation. Except as otherwise provided in this section, a person charged with an offense is not liable to be tried by court–martial or punished under § 13A–301 of this title if the offense was committed more than 5 years before: 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. 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. Periods in which the accused was absent from territory in which the State has the authority to apprehend the accused, 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 section. 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: be received by an officer exercising summary court–martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications; and allege the same acts or omissions that were alleged or included in the dismissed charges or specifications.

A person may not, without the consent of the person, be tried a second time for the same offense. A proceeding in which an accused has been found guilty by a court–martial on any charge or specification is not a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed. 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.

If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up a matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty. 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. A variance from the requirements of this section is harmless error if the variance does not materially prejudice the substantial rights of the accused.

The trial counsel, the defense counsel, and the court–martial shall have equal opportunity to obtain witnesses and other evidence as prescribed by regulations and provided by law. 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: the caption of the action; the name and address of the person to whom it is directed; the name of the person at whose request it is issued; the date, time, and place where attendance is required; a description of any documents, recordings, photographs, or other tangible things to be produced; the date of issuance and an expiration date, which shall be 60 days after the date of issuance; and a statement that the subpoena may be served within 60 days after its issuance and may not be served thereafter. 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. A subpoena or other process may be issued to compel a witness to appear and testify: 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: for a court–martial, or court of inquiry; for a deposition under § 13A–714 of this subtitle; for an investigation of an offense under this title; or as otherwise authorized under this title. 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. If a person requests relief from a subpoena or other process under this section on grounds that compliance is unreasonable or oppressive or is prohibited by law, a military judge detailed in accordance with § 13A–505 or § 13A–602 of this title shall review the request and shall: 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.

A person not subject to this title may be punished by a State court of competent jurisdiction if the person: has been duly subpoenaed to appear as a witness or to produce books and records before a court–martial or court of inquiry, or before any military or civil officer designated to take a deposition to be read in evidence before such a court; has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending a criminal court of the State; and willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence that the person may have been legally subpoenaed to produce.

A military judge or summary court–martial officer may punish for contempt a person who uses any menacing word, sign, or gesture in the judge’s or officer’s presence, or who disturbs the proceedings by riot or disorder. A person subject to this title may be punished for contempt by confinement not to exceed 30 days or a fine of $100, or both. A person not subject to this title may be punished by a State court of competent jurisdiction at the request of the military judge.

At any time after charges have been signed as provided in § 13A–601 of this title, any party may take oral or written depositions unless the military judge or summary court–martial officer hearing the case or, if the case is not being heard, an authority competent to convene a court–martial for the trial of those charges forbids it for good cause. The party at whose insistence 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 civil officer authorized by the laws of the State or by the laws of the place where the deposition is taken to administer oaths. A duly authenticated deposition taken on reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audiotape, videotape, digital image or file, or similar material, may be played in evidence before any military court, if it appears: 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. A deposition order under subsection (a) of this section does not control the admissibility of the deposition in a court–martial or other proceeding under this title.

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: by the defense in cases extending to the dismissal of a commissioned officer; and before a court of inquiry. Sworn testimony that is recorded by audiotape, videotape, or similar method and is contained in the duly authenticated record of proceedings of a court of inquiry is admissible before a court–martial, military commission, court of inquiry, or military board, to the same extent as sworn testimony 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. Procedures for the defense of lack of mental responsibility will be governed by the rules of use of courts–martial to the extent they do not conflict with State substantive law.

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. Subject to subparagraph (ii) of this paragraph, any such ruling made by the military judge on any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused is final and constitutes the ruling of the court. The military judge may change the 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 § 13A–717 of this subtitle, beginning with the junior in rank. Before a vote is taken on the findings, the 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 that: 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.

A person may not be convicted of an offense in a general or special court–martial, other than: 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.

A court–martial shall announce its findings and sentence to the parties as soon as determined. 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. If the accused is convicted of an offense in a trial by summary court–martial, the court–martial shall sentence 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 manner in which the convening authority will dispose of one or more charges and specifications; and limitations on the sentence that may be adjudged for one or more charges and specifications. 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. The military judge of a general or special court–martial shall reject a plea agreement that: 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. With respect to an offense referred to in § 13A–802 of this title: 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. On acceptance by the military judge of a general or special court–martial, a plea agreement shall bind the parties and the court–martial.

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. Each summary court–martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner as may be prescribed by regulations. 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.