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10 U.S.C. § 839 — Art. 39. Sessions
Federal law — U.S. Code and appendices · legal_authorities
**(a)** At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to [section 835 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section835&num=0&edition=prelim) (article 35), call the court into session without the presence of the members for the purpose of—
(1) 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;
(2) 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;
(3) holding the arraignment and receiving the pleas of the accused;
(4) conducting a sentencing proceeding and sentencing the accused under [section 853(b)(1) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section853/b/1&num=0&edition=prelim) (article 53(b)(1)); and
(5) 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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section836&num=0&edition=prelim) (article 36) and which does not require the presence of the members of the court.
**(b)** Proceedings under subsection (a) 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. These proceedings may be conducted notwithstanding the number of members of the court and without regard to [section 829 of this title](https://uscode.house.gov/view.xhtml?req
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Stable record: federal_law:legal_authorities:record_usc_34c39c2b2acfc50beb002776
Source file: Laws/federal/codes/united-states-code/title-10/section-839-art-39-sessions--8f423e500b.md
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Source location: Title 10, Chapter 47, § 839; chapter-047-uniform-code-of-military-justice.md
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**(a)** At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to [section 835 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section835&num=0&edition=prelim) (article 35), call the court into session without the presence of the members for the purpose of—
(1) 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;
(2) 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;
(3) holding the arraignment and receiving the pleas of the accused;
(4) conducting a sentencing proceeding and sentencing the accused under [section 853(b)(1) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section853/b/1&num=0&edition=prelim) (article 53(b)(1)); and
(5) 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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section836&num=0&edition=prelim) (article 36) and which does not require the presence of the members of the court.
**(b)** Proceedings under subsection (a) 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. These proceedings may be conducted notwithstanding the number of members of the court and without regard to [section 829 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section829&num=0&edition=prelim) (article 29). If authorized by regulations of the Secretary concerned, and if at least one defense counsel is physically in the presence of the accused, the presence required by this subsection may otherwise be established by audiovisual technology (such as videoteleconferencing technology).
**(c)** 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.
**(d)** The findings, holdings, interpretations, and other precedents of military commissions under chapter 47A of this title—
(1) may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial under this chapter; and
(2) may not form the basis of any holding, decision, or other determination of a court-martial.
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Federal law — U.S. Code and appendices · legal_authorities
**(a) Assembly.—** The military judge shall announce the assembly of a general or special court-martial with members. After such a court-martial is assembled, no member may be absent, unless the member is excused—
(1) as a result of a challenge;
(2) under subsection (b)(1)(B); or
(3) by order of the military judge or the convening authority for disability or other good cause.
**(b) Impaneling.—**
(1) Under rules prescribed by the President, the military judge of a general or special court-martial with members shall—
(A) after determination of challenges, impanel the court-martial; and
(B) excuse the members who, having been assembled, are not impaneled.
(2) In a general court-martial, the military judge shall impanel—
(A) 12 members in a capital case; and
(B) eight members in a noncapital case.
(3) In a special court-martial, the military judge shall impanel four members.
**(c) Alternate Members.—** In addition to members under subsection (b), the military judge shall impanel alternate members, if the convening authority authorizes alternate members.
**(d) Detail of New Members.—**
(1) If, after members are impaneled, the membership of the court-martial is reduced to—
(A) fewer than 12 members with respect to a general court-martial in a capital case;
(B) fewer than six members with respect to a general court-martial in a noncapital case; or
(C) fewer than four members with respect to a special court-martial;
the trial may not proceed unless the convening authority details new members and, from among the members so detailed, the military judge impanels new members sufficient in number to provide the membership specified in paragraph (2).
(2) The membership referred to in paragraph (1) is as follows:
(A) 12 members with respect to a g
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Federal law — U.S. Code and appendices · legal_authorities
**(a)**
(1) 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.
(2) If exercise of a challenge for cause reduces the court below the number of members required by [section 816 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section816&num=0&edition=prelim) (article 16), all parties shall (notwithstanding [section 829 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section829&num=0&edition=prelim) (article 29)) 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. However, peremptory challenges shall not be exercised at that time.
**(b)**
(1) 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.
(2) If exercise of a peremptory challenge reduces the court below the number of members required by [section 816 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section816&num=0&edition=prelim) (article 16), the parties shall (notwithstanding [section 829 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section829&num=0&edition=prelim) (article 29)) either exercise or waive any remaining peremptory challenge (not previously waived) against the remaining
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Federal law — U.S. Code and appendices · legal_authorities
In this chapter (the Uniform Code of Military Justice):
(1) The term “Judge Advocate General” means, severally, the Judge Advocates General of the Army, Navy, and Air Force and, except when the Coast Guard is operating as a service in the Navy, an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security.
(2) The Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy, shall be considered as one armed force.
(3) The term “commanding officer” includes only commissioned officers.
(4) The term “officer in charge” means a member of the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority.
(5) The term “superior commissioned officer” means a commissioned officer superior in rank or command.
(6) The term “cadet” means a cadet of the United States Military Academy, the United States Air Force Academy, or the United States Coast Guard Academy.
(7) The term “midshipman” means a midshipman of the United States Naval Academy and any other midshipman on active duty in the naval service.
(8) The term “military” refers to any or all of the armed forces.
(9) The term “accuser” means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused.
(10) The term “military judge” means a judge advocate designated under [section 826(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section826/c&num=0&edition=prelim) (article 26(c)) who is detailed under section 826(a) or [section 830a of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-
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Federal law — U.S. Code and appendices · legal_authorities
**(a)** Any commissioned officer on active duty is eligible to serve on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial.
**(b)** Any warrant officer on active duty is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought before such courts for trial.
**(c)**
(1) Any enlisted member on active duty is eligible to serve on a general or special court-martial for the trial of any other enlisted member.
(2) Before a court-martial with a military judge and members is assembled for trial, an enlisted member who is an accused may personally request, orally on the record or in writing, that—
(A) the membership of the court-martial be comprised entirely of officers; or
(B) enlisted members comprise at least one-third of the membership of the court-martial, regardless of whether enlisted members have been detailed to the court-martial.
(3) Except as provided in paragraph (4), after such a request, the accused may not be tried by a general or special court-martial if the membership of the court-martial is inconsistent with the request.
(4) If, because of physical conditions or military exigencies, a sufficient number of eligible officers or enlisted members, as the case may be, is not available to carry out paragraph (2), the trial may nevertheless be held. In that event, the convening authority shall make a detailed written statement of the reasons for nonavailability. The statement shall be appended to the record.
**(d)**
(1) Except as provided in paragraph (2) for capital offenses, the accused in a court-martial with a military judge and members shall be sentenced by the military judge.
(2) In a capital case, if the a
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Federal law — U.S. Code and appendices · legal_authorities
**(a) In General.—** Trial counsel detailed for a court-martial under [section 827 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section827&num=0&edition=prelim) (article 27) shall cause to be served upon the accused a copy of the charges and specifications referred for trial.
**(b) Commencement of Trial.—**
(1) Subject to paragraphs (2) and (3), no trial or other proceeding of a general court-martial or a special court-martial (including any session under [section 839(a) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section839/a&num=0&edition=prelim) (article 39(a)) may be held over the objection of the accused—
(A) with respect to a general court-martial, from the time of service through the fifth day after the date of service; or
(B) with respect to a special court-martial, from the time of service through the third day after the date of service.
(2) An objection under paragraph (1) may be raised only at the first session of the trial or other proceeding and only if the first session occurs before the end of the applicable period under paragraph (1)(A) or (1)(B). If the first session occurs before the end of the applicable period, the military judge shall, at that session, inquire as to whether the defense objects under this subsection.
(3) This subsection shall not apply in time of war.
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Federal law — U.S. Code and appendices · legal_authorities
**(a)** 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 States district courts, but which may not, except as provided in chapter 47A of this title, be contrary to or inconsistent with this chapter.
**(b)** All rules and regulations made under this article shall be uniform insofar as practicable, except insofar as applicable to military commissions established under chapter 47A of this title.
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Federal law — U.S. Code and appendices · legal_authorities
**(a)** A military judge shall be detailed to each general and special court-martial. The Secretary concerned shall prescribe regulations providing for the manner in which military judges are detailed for such courts-martial and for the persons who are authorized to detail military judges for such courts-martial. The military judge shall preside over each open session of the court-martial to which he has been detailed.
**(b)** A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court or a member of the bar of the highest court of a State and who is certified to be qualified, by reason of education, training, experience, and judicial temperament, for duty as a military judge by the Judge Advocate General of the armed force of which such military judge is a member.
**(c)**
(1) In accordance with regulations prescribed under subsection (a), a military judge of a general or special court-martial shall be designated for detail by the Judge Advocate General of the armed force of which the military judge is a member.
(2) Neither the convening authority nor any member of the staff of the convening authority shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to the military judge’s performance of duty as a military judge.
(3) A commissioned officer who is certified to be qualified for duty as a military judge of a general court-martial—
(A) may perform such duties only when the officer is assigned and directly responsible to the Judge Advocate General of the armed force of which the military judge is a member; and
(B) may perform duties of a judicial or nonjudicial nature other than those relating to the officer’s primary duty
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Federal law — U.S. Code and appendices · legal_authorities
### Statutory Notes
Section 611, act May 5, 1950, ch. 169, § 1, 64 Stat. 120, authorized President to prescribe rules. See [section 836 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section836&num=0&edition=prelim), Armed Forces.
Section 612, act May 5, 1950, ch. 169, § 1, 64 Stat. 120, related to unlawfully influencing action of court. See [section 837 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section837&num=0&edition=prelim).
Section 613, act May 5, 1950, ch. 169, § 1, 64 Stat. 120, provided for duties of trial counsel and defense counsel. See [section 838 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section838&num=0&edition=prelim).
Section 614, act May 5, 1950, ch. 169, § 1, 64 Stat. 121, related to sessions of the courts-martial. See [section 839 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section839&num=0&edition=prelim).
Section 615, act May 5, 1950, ch. 169, § 1, 64 Stat. 121, provided for continuances. See [section 840 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section840&num=0&edition=prelim).
Section 616, act May 5, 1950, ch. 169, § 1, 64 Stat. 121, provided for challenges. See [section 841 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section841&num=0&edition=prelim).
Section 617, act May 5, 1950, ch. 169, § 1, 64 Stat. 121, related to oaths. See [section 842 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section842&num=0&edition=prelim).
Section 618, act May 5, 1950, ch. 169, § 1, 64 Stat. 121, related to statutes of limitation. See [section 843 of Title 10](https://uscode.house.gov/view.xhtml
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Federal law — U.S. Code and appendices · legal_authorities
Page 755
TITLE 10—ARMED FORCES
§ 839
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.
(e) An assistant defense counsel of a general or
special court-martial may perform any duty im-
posed by law, regulation, or the custom of the
service upon counsel for the accused.
(Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L.
90–632, § 2(14), Oct. 24, 1968, 82 Stat. 1338; Pub. L.
97–81, § 4(b), Nov. 20, 1981, 95 Stat. 1088; Pub. L.
98–209, § 3(e), Dec. 6, 1983, 97 Stat. 1394; Pub. L.
104–106, div. A, title XV, § 1502(a)(1), Feb. 10, 1996,
110 Stat. 502; Pub. L. 106–65, div. A, title X,
§ 1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 113–66,
div. A, title XVII, § 1702(c)(3)(C), Dec. 26, 2013, 127
Stat. 957; Pub. L. 114–328, div. E, title LVII,
§ 5221, Dec. 23, 2016, 130 Stat. 2909; Pub. L. 115–91,
div. A, title V, § 531(c), Dec. 12, 2017, 131 Stat.
1384.)
HISTORICAL AND REVISION NOTES
Revised
section
Source (U.S. Code)
Source (Statutes at Large)
838(a) ......
838(b) ......
838(c) ......
50:613(a).
50:613(b).
50:613(c).
May 5, 1950, ch. 169, § 1
(Art. 38), 64 Stat. 120.
838(d) ......
50:613(d).
838(e) ......
50:613(e).
In subsection (b), the word ‘‘has’’ is substituted for
the words ‘‘shall have’’. The word ‘‘under’’ is sub-
stituted for the words ‘‘pursuant to’’. The word ‘‘duly’’
is omitted as surplusage. The words ‘‘detailed’’ and
‘‘who were detailed’’ are substituted for the word ‘‘ap-
pointed’’, since the filling of the position involved is
not appointment to an office in the constitutional
sense.
In subsection (c), the word
Source: Supplied 2024 U.S. Code historical extraction · 10 U.S.C. § 839
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