10 U.S.C. § 836 — Art. 36. President may prescribe rules

Page 752 TITLE 10—ARMED FORCES § 836 (b) COMMENCEMENT OF TRIAL.—(1) Subject to paragraphs (2) and (3), no trial or other pro- ceeding of a general court-martial or a special court-martial (including any session under sec- tion 839(a) of this title (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 oc- curs before the end of the applicable period under paragraph (1)(A) or (1)(B). If the first ses- sion occurs before the end of the applicable pe- riod, 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. (Aug. 10, 1956, ch. 1041, 70A Stat. 49; Pub. L. 90–632, § 2(12), Oct. 24, 1968, 82 Stat. 1337; Pub. L. 114–328, div. E, title LVI, § 5206, Dec. 23, 2016, 130 Stat. 2908.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 835 .......... 50:606. May 5, 1950, ch. 169, § 1 (Art. 35), 64 Stat. 119. The word ‘‘may’’ is substituted for the word ‘‘shall’’. The word ‘‘after’’ is substituted for the words ‘‘subse- quent to’’. Editorial Notes AMENDMENTS 2016—Pub. L. 114–328 amended section generally. Prior to amendment, text read as follows: ‘‘The trial counsel to whom court-martial charges are referred for trial shall cause to be served upon the accused a copy of the charges upon which trial is to be had. In time of peace no person may, against his objection, be brought to trial, or be required to participate by himself or coun- sel in a session called by the military judge under sec- tion 839(a) of this title (article 39(a)), in a general court-martial case within a period of five days after the service of charges upon him, or in a special court-mar- tial case within a period of three days after the service of charges upon him.’’ 1968—Pub. L. 90–632 inserted reference to a session called by the military judge under section 839(a) of this title (article 39(a)). Statutory Notes and Related Subsidiaries 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 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. SUBCHAPTER VII—TRIAL PROCEDURE Sec. Art. 836. 36. President may prescribe rules. 837. 37. Command influence. 838. 38. Duties of trial counsel and defense coun- sel. 839. 39. Sessions. 840. 40. Continuances. 841. 41. Challenges. 842. 42. Oaths. 843. 43. Statute of limitations. 844. 44. Former jeopardy. 845. 45. Pleas of the accused. 846. 46. Opportunity to obtain witnesses and other evidence in trials by court-mar- tial. 847. 47. Refusal of person not subject to chapter to appear, testify, or produce evidence. 848. 48. Contempt. 849. 49. Depositions. 850. 50. Admissibility of sworn testimony from records of courts of inquiry. 850a. 50a. Defense of lack of mental responsibility. 851. 51. Voting and rulings. 852. 52. Votes required for conviction, sentencing, and other matters. 853. 53. Findings and sentencing. 853a. 53a. Plea agreements. 854. 54. Record of trial. Editorial Notes AMENDMENTS 2021—Pub. L. 116–283, div. A, title X, § 1081(a)(20), Jan. 1, 2021, 134 Stat. 3871, added item 837 and struck out former item 837 ‘‘837. Art. 37. Command influence’’. 2019—Pub. L. 116–92, div. A, title V, § 532(b), Dec. 20, 2019, 133 Stat. 1361, in item 837 substituted ‘‘Art. 37. Command influence’’ for ‘‘37. Unlawfully influencing action of court’’. 2017—Pub. L. 115–91, div. A, title X, § 1081(d)(19)(A), Dec. 12, 2017, 131 Stat. 1601, made technical amendment to Pub. L. 114–328, § 5541(4). See 2016 Amendment note below. 2016—Pub. L. 114–328, div. E, title LXIII, § 5541(4), Dec. 23, 2016, 130 Stat. 2966, as amended by Pub. L. 115–91, div. A, title X, § 1081(d)(19)(A), Dec. 12, 2017, 131 Stat. 1601, added item 853a and substituted ‘‘Opportunity to obtain witnesses and other evidence in trials by court- martial’’ for ‘‘Opportunity to obtain witnesses and other evidence’’ in item 846, ‘‘Refusal of person not sub- ject to chapter to appear, testify, or produce evidence’’ for ‘‘Refusal to appear or testify’’ in item 847, ‘‘Con- tempt’’ for ‘‘Contempts’’ in item 848, ‘‘Admissibility of sworn testimony from records of courts of inquiry’’ for ‘‘Admissibility of records of courts of inquiry’’ in item 850, ‘‘Votes required for conviction, sentencing, and other matters’’ for ‘‘Number of votes required’’ in item 852, and ‘‘Findings and sentencing’’ for ‘‘Court to an- nounce action’’ in item 853. 1986—Pub. L. 99–661, div. A, title VIII, § 802(a)(2), Nov. 14, 1986, 100 Stat. 3906, added item 850a. § 836. Art. 36. President may prescribe rules (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 pre- scribed 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. Page 753 TITLE 10—ARMED FORCES § 837 (b) All rules and regulations made under this article shall be uniform insofar as practicable, except insofar as applicable to military commis- sions established under chapter 47A of this title. (Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L. 96–107, title VIII, § 801(b), Nov. 9, 1979, 93 Stat. 811; Pub. L. 101–510, div. A, title XIII, § 1301(4), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 109–366, § 4(a)(3), Oct. 17, 2006, 120 Stat. 2631.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 836(a) ...... 836(b) ...... 50:611(a). 50:611(b). May 5, 1950, ch. 169, § 1 (Art. 36), 64 Stat. 120. In subsection (a), the word ‘‘considers’’ is substituted for the word ‘‘deems’’. The word ‘‘may’’ is substituted for the word ‘‘shall’’. In subsection (b), the word ‘‘under’’ is substituted for the words ‘‘in pursuance of’’. Editorial Notes AMENDMENTS 2006—Subsec. (a). Pub. L. 109–366, § 4(a)(3)(A), inserted ‘‘, except as provided in chapter 47A of this title,’’ after ‘‘but which may not’’. Subsec. (b). Pub. L. 109–366, § 4(a)(3)(B), inserted be- fore period at end ‘‘, except insofar as applicable to military commissions established under chapter 47A of this title’’. 1990—Subsec. (b). Pub. L. 101–510 struck out ‘‘and shall be reported to Congress’’ after ‘‘as practicable’’. 1979—Subsec. (a). Pub. L. 96–107 substituted provi- sions authorizing pretrial, trial, and post-trial proce- dures for cases under this chapter triable in courts- martial, military commissions and other military tri- bunals, for provisions authorizing procedure in cases before courts-martial, military commissions, and other military tribunals. § 837. Art. 37. Command influence (a)(1) No court-martial convening authority, nor any other commanding officer, may censure, reprimand, or admonish the court or any mem- ber, military judge, or counsel thereof, with re- spect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the pro- ceeding. (2) No court-martial convening authority, nor any other commanding officer, may deter or at- tempt to deter a potential witness from partici- pating in the investigatory process or testifying at a court-martial. The denial of a request to travel at government expense or refusal to make a witness available shall not by itself constitute unlawful command influence. (3) No person subject to this chapter may at- tempt to coerce or, by any unauthorized means, attempt to influence the action of a court-mar- tial or any other military tribunal or any mem- ber thereof, in reaching the findings or sentence in any case, or the action of any convening, ap- proving, or reviewing authority or preliminary hearing officer with respect to such acts taken pursuant to this chapter as prescribed by the President. (4) Conduct that does not constitute a viola- tion of paragraphs (1) through (3) may include, for example— (A) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing persons on the substantive and procedural as- pects of courts-martial; (B) statements regarding criminal activity or a particular criminal offense that do not advocate a particular disposition, or a par- ticular court-martial finding or sentence, or do not relate to a particular accused; or (C) statements and instructions given in open court by the military judge or counsel. (5)(A) Notwithstanding paragraphs (1) through (3), but subject to subparagraph (B)— (i) a superior convening authority or officer may generally discuss matters to consider re- garding the disposition of alleged violations of this chapter with a subordinate convening au- thority or officer; and (ii) a subordinate convening authority or of- ficer may seek advice from a superior con- vening authority or officer regarding the dis- position of an alleged offense under this chap- ter. (B) No superior convening authority or officer may direct a subordinate convening authority or officer to make a particular disposition in a specific case or otherwise substitute the discre- tion of such authority or such officer for that of the subordinate convening authority or officer. (b) In the preparation of an effectiveness, fit- ness, or efficiency report, or any other report or document used in whole or in part for the pur- pose of determining whether a member of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no per- son subject to this chapter may, in preparing any such report (1) consider or evaluate the per- formance of duty of any such member as a mem- ber of a court-martial, or (2) give a less favor- able rating or evaluation of any member of the armed forces because of the zeal with which such member, as counsel, represented any per- son in a court-martial proceeding. (c) No finding or sentence of a court-martial may be held incorrect on the ground of a viola- tion of this section unless the violation materi- ally prejudices the substantial rights of the ac- cused. (d)(1) A superior convening authority or com- manding officer may withhold the authority of a subordinate convening authority or officer to dispose of offenses in individual cases, types of cases, or generally. (2) Except as provided in paragraph (1) or as otherwise authorized by this chapter, a superior convening authority or commanding officer may not limit the discretion of a subordinate con- vening authority or officer to act with respect to a case for which the subordinate convening authority or officer has authority to dispose of the offenses. (Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L. 90–632, § 2(13), Oct. 24, 1968, 82 Stat. 1338; Pub. L. 116–92, div. A, title V, § 532(a), Dec. 20, 2019, 133 Stat. 1359.)