10 U.S.C. § 838 — Art. 38. Duties of trial counsel and defense

Page 754 TITLE 10—ARMED FORCES § 838 HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 837 .......... 50:612. May 5, 1950, ch. 169, § 1 (Art. 37), 64 Stat. 120. The word ‘‘may’’ is substituted for the word ‘‘shall’’. Editorial Notes AMENDMENTS 2019—Pub. L. 116–92, § 532(a)(1), substituted ‘‘Command influence’’ for ‘‘Unlawfully influencing action of court’’ in section catchline. Subsec. (a). Pub. L. 116–92, § 532(a)(2), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: ‘‘No authority convening a general, special, or summary court-martial, nor any other commanding of- ficer, may censure, reprimand, or admonish the court or any member, 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 his functions in the conduct of the proceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal 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 his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or infor- mational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural as- pects of courts-martial, or (2) to statements and in- structions given in open court by the military judge, president of a special court-martial, or counsel.’’ Subsec. (b). Pub. L. 116–92, § 532(a)(3), substituted ‘‘ad- vanced in grade’’ for ‘‘advanced, in grade’’ and ‘‘person in a court-martial proceeding’’ for ‘‘accused before a court-martial’’. Subsecs. (c), (d). Pub. L. 116–92, § 532(a)(4), added sub- secs. (c) and (d). 1968—Pub. L. 90–632 designated existing provisions as subsec. (a), substituted ‘‘military judge’’ for ‘‘law offi- cer’’, inserted provisions specifically exempting in- structional or general informational lectures on mili- tary justice and statements and instructions given in open court by the military judge, president of a special court-martial, or counsel from prohibitions of subsec. (a), and added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2019 AMENDMENT Pub. L. 116–92, div. A, title V, § 532(c), Dec. 20, 2019, 133 Stat. 1361, provided that: ‘‘The amendments made by subsections (a) and (b) [amending this section] shall take effect on the date of the enactment of this Act [Dec. 20, 2019] and shall apply with respect to violations of section 837 of title 10, United States Code (article 37 of the Uniform Code of Military Justice), committed on or after such date.’’ 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. § 838. Art. 38. Duties of trial counsel and defense counsel (a) The trial counsel of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of the proceedings. (b)(1) The accused has the right to be rep- resented in his defense before a general or spe- cial court-martial or at a preliminary hearing under section 832 of this title (article 32) as pro- vided in this subsection. (2) The accused may be represented by civilian counsel if provided by him. (3) The accused may be represented— (A) by military counsel detailed under sec- tion 827 of this title (article 27); or (B) by military counsel of his own selection if that counsel is reasonably available (as de- termined under regulations prescribed under paragraph (7)). (4) If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (3) shall act as associate coun- sel unless excused at the request of the accused. (5) Except as provided under paragraph (6), if the accused is represented by military counsel of his own selection under paragraph (3)(B), any military counsel detailed under paragraph (3)(A) shall be excused. (6) The accused is not entitled to be rep- resented by more than one military counsel. However, the person authorized under regula- tions prescribed under section 827 of this title (article 27) to detail counsel, in his sole discre- tion— (A) may detail additional military counsel as assistant defense counsel; and (B) if the accused is represented by military counsel of his own selection under paragraph (3)(B), may approve a request from the accused that military counsel detailed under para- graph (3)(A) act as associate defense counsel. (7) The Secretary concerned shall, by regula- tion, define ‘‘reasonably available’’ for the pur- pose of paragraph (3)(B) and establish procedures for determining whether the military counsel selected by an accused under that paragraph is reasonably available. Such regulations may not prescribe any limitation 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. To the max- imum extent practicable, such regulations shall establish uniform policies among the armed forces while recognizing the differences in the circumstances and needs of the various armed forces. The Secretary concerned shall submit copies of regulations prescribed under this para- graph to the Committee on Armed Services of the Senate and the Committee on Armed Serv- ices of the House of Representatives. (c) In any court-martial proceeding resulting in a conviction, the defense counsel— (1) may forward for attachment to the record of proceedings a brief of such matters as he de- termines should be considered in behalf of the accused on review (including any objection to the contents of the record which he considers appropriate); (2) may assist the accused in the submission of any matter under section 860, 860a, or 860b of this title (article 60, 60a, or 60b); and (3) may take other action authorized by this chapter. (d) An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he is qualified to be a trial 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