10 U.S.C. § 839 — Art. 39. Sessions

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 ‘‘considers’’ is substituted for the words ‘‘may deem’’. Editorial Notes AMENDMENTS 2017—Subsec. (c)(2). Pub. L. 115–91 substituted ‘‘sec- tion 860, 860a, or 860b of this title (article 60, 60a, or 60b)’’ for ‘‘section 860 of this title (article 60)’’. 2016—Subsec. (e). Pub. L. 114–328 struck out ‘‘, under the direction of the defense counsel or when he is quali- fied to be the defense counsel as required by section 827 of this title (article 27),’’ after ‘‘court-martial may’’. 2013—Subsec. (b)(1). Pub. L. 113–66 substituted ‘‘a pre- liminary hearing under section 832’’ for ‘‘an investiga- tion under section 832’’. 1999—Subsec. (b)(7). Pub. L. 106–65 substituted ‘‘and the Committee on Armed Services’’ for ‘‘and the Com- mittee on National Security’’. 1996—Subsec. (b)(7). Pub. L. 104–106 substituted ‘‘Com- mittee on Armed Services of the Senate and the Com- mittee on National Security of the House of Represent- atives’’ for ‘‘Committees on Armed Services of the Sen- ate and House of Representatives’’. 1983—Subsec. (b)(6). Pub. L. 98–209, § 3(e)(1), sub- stituted ‘‘the person authorized under regulations pre- scribed under section 827 of this title (article 27) to de- tail counsel’’ for ‘‘a convening authority’’. Subsec. (b)(7). Pub. L. 98–209, § 3(e)(2), inserted provi- sion that such regulations may not prescribe any limi- tation based on the reasonable availability of counsel solely on the grounds that the counsel selected by the accused is from an armed force other than the armed force of which the accused is a member. Subsec. (c). Pub. L. 98–209, § 3(e)(3), designated exist- ing provisions as par. (1), made minor changes in phra- seology and punctuation, and added pars. (2) and (3). 1981—Subsec. (b). Pub. L. 97–81 revised subsec. (b) by dividing its provisions into seven numbered paragraphs and inserted provisions relating to the right to counsel at an investigation under section 832 of this title (arti- cle 32), authorizing the promulgation of regulations re- lating to the ‘‘reasonable availability’’ of military counsel, and authorizing the detailing of additional military counsel for the accused under specified cir- cumstances. 1968—Subsec. (b). Pub. L. 90–632 substituted ‘‘military judge or by the president of a court-martial without a military judge’’ for ‘‘president of the court’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§ 5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 531(p) of Pub. L. 115–91, set out as a note under section 801 of this title. EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. EFFECTIVE DATE OF 2013 AMENDMENT Amendment by Pub. L. 113–66 effective on the later of Dec. 26, 2014, or the date of the enactment of the Carl Levin and Howard P. ‘‘Buck’’ McKeon National Defense Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) and applicable with respect to preliminary hearings conducted on or after that effective date, see section 1702(d)(1) of Pub. L. 113–66, set out as a note under sec- tion 802 of this title. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 98–209 effective first day of eighth calendar month after Dec. 6, 1983, but not to af- fect the designation or detail of a military judge or military counsel to a court-martial before that date, see section 12(a)(1), (2) of Pub. L. 98–209, set out as a note under section 801 of this title. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–81 to take effect at end of 60-day period beginning on Nov. 20, 1981, and to apply to trials by courts-martial in which all charges are re- ferred to trial on or after that date, see section 7(a) and (b)(4) of Pub. L. 97–81, set out as an Effective Date note under section 706 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–632 effective on first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title. § 839. Art. 39. Sessions (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 mem- bers, 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— (1) hearing and determining motions raising defenses or objections which are capable of de- termination 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 Page 756 TITLE 10—ARMED FORCES § 840 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 (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 (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 de- fense 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 (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 re- quired by this subsection may otherwise be es- tablished by audiovisual technology (such as videoteleconferencing technology). (c) When the members of a court-martial de- liberate 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. (Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 90–632, § 2(15), Oct. 24, 1968, 82 Stat. 1338; Pub. L. 101–510, div. A, title V, § 541(a), Nov. 5, 1990, 104 Stat. 1565; Pub. L. 109–163, div. A, title V, § 556, Jan. 6, 2006, 119 Stat. 3266; Pub. L. 111–84, div. A, title XVIII, § 1803(a)(2), Oct. 28, 2009, 123 Stat. 2612; Pub. L. 114–328, div. E, title LVII, § 5222, Dec. 23, 2016, 130 Stat. 2909; Pub. L. 115–91, div. A, title X, § 1081(c)(1)(D), Dec. 12, 2017, 131 Stat. 1598.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 839 .......... 50:614. May 5, 1950, ch. 169, § 1 (Art. 39), 64 Stat. 121. The word ‘‘When’’ is substituted for the word ‘‘When- ever’’. The words ‘‘deliberates or votes’’ are substituted for the words ‘‘is to deliberate or vote’’. The word ‘‘may’’ is substituted for the word ‘‘shall’’. The word ‘‘shall’’ is inserted before the words ‘‘be in the pres- ence’’ for clarity. Editorial Notes AMENDMENTS 2017—Subsec. (a)(4). Pub. L. 115–91 substituted ‘‘under section 853(b)(1) of this title (article 53(b)(1))’’ for ‘‘in non-capital cases unless the accused requests sen- tencing by members under section 825 of this title (arti- cle 25)’’. 2016—Subsec. (a)(3). Pub. L. 114–328, § 5222(1)(A), struck out ‘‘if permitted by regulations of the Sec- retary concerned,’’ before ‘‘holding’’ and ‘‘and’’ after ‘‘accused;’’. Subsec. (a)(4), (5). Pub. L. 114–328, § 5222(1)(B), (C), added par. (4) and redesignated former par. (4) as (5). Subsec. (c). Pub. L. 114–328, § 5222(2), struck out ‘‘, in cases in which a military judge has been detailed to the court,’’ after ‘‘the trial counsel, and’’. 2009—Subsec. (d). Pub. L. 111–84 added subsec. (d). 2006—Pub. L. 109–163 redesignated concluding provi- sions of subsec. (a) as subsec. (b), substituted ‘‘Pro- ceedings under subsection (a) shall be conducted’’ for ‘‘These proceedings shall be conducted’’, inserted at end ‘‘If authorized by regulations of the Secretary con- cerned, 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 audio- visual technology (such as videoteleconferencing tech- nology).’’, and redesignated former subsec. (b) as (c). 1990—Subsec. (a). Pub. L. 101–510 inserted at end ‘‘These proceedings may be conducted notwithstanding the number of members of the court and without regard to section 829 of this title (article 29).’’ 1968—Pub. L. 90–632 added subsec. (a), designated ex- isting provisions as subsec. (b), substituted ‘‘military judge’’ for ‘‘law officer’’, and struck out provisions au- thorizing the court after voting on the findings in a general court-martial to request the law officer and the reporter to appear before the court to put the findings in proper form. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§ 5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 1081(c)(4) of Pub. L. 115–91, set out as a note under sec- tion 801 of this title. EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with imple- menting regulations and provisions relating to applica- bility to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title. EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–510, div. A, title V, § 541(e), Nov. 5, 1990, 104 Stat. 1565, provided that: ‘‘The amendments made by subsections (a) through (d) [amending this section and section 841 of this title] shall apply only to a court- martial convened on or after the date of the enactment of this Act [Nov. 5, 1990].’’ EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title. § 840. Art. 40. Continuances The military judge or a summary court-mar- tial may, for reasonable cause, grant a continu- ance to any party for such time, and as often, as may appear to be just. (Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 90–632, § 2(16), Oct. 24, 1968, 82 Stat. 1339; Pub. L. 114–328, div. E, title LVII, § 5223, Dec. 23, 2016, 130 Stat. 2909.)