10 U.S.C. § 845 — Art. 45. Pleas of the accused

Page 761 TITLE 10—ARMED FORCES § 845 under section 5542(a) of the Military Justice Act of 2016 (division E of Public Law 114–328; 130 Stat. 2967) [10 U.S.C. 801 note], subsection (b)(2)(B) of section 843 of title 10, United States Code (article 43 of the Uniform Code of Military Justice), shall be applied as in effect on December 22, 2016. ‘‘(3) FRAUDULENT ENLISTMENT OR APPOINTMENT OF- FENSES.—With respect to the period beginning on De- cember 23, 2016, and ending on the day before the date designated by the President under section 5542(a) of the Military Justice Act of 2016 (division E of Public Law 114–328; 130 Stat. 2967), in the application of subsection (h) of section 843 of title 10, United States Code (article 43 of the Uniform Code of Military Justice), as added by section 5225(b) of that Act (130 Stat. 2909), the reference in such subsection (h) to section 904a(1) of title 10, United States Code (article 104a(1) of the Uniform Code of Military Justice), shall be deemed to be a reference to section 883(1) of title 10, United States Code (article 83(1) of the Uniform Code of Military Justice).’’ § 844. Art. 44. Former jeopardy (a) No person may, without his consent, be tried a second time for the same offense. (b) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has be- come final after review of the case has been fully completed. (c)(1) A court-martial with a military judge alone is a trial in the sense of this section (arti- cle) if, without fault of the accused— (A) after introduction of evidence; and (B) before announcement of findings under section 853 of this title (article 53); the case is dismissed or terminated by the con- vening authority or the special trial counsel or on motion of the prosecution for failure of avail- able evidence or witnesses. (2) A court-martial with a military judge and members is a trial in the sense of this section (article) if, without fault of the accused— (A) after the members, having taken an oath as members under section 842 of this title (ar- ticle 42) and after completion of challenges under section 841 of this title (article 41), are impaneled; and (B) before announcement of findings under section 853 of this title (article 53); the case is dismissed or terminated by the con- vening authority or the special trial counsel or on motion of the prosecution for failure of avail- able evidence or witnesses. (Aug. 10, 1956, ch. 1041, 70A Stat. 52; Pub. L. 114–328, div. E, title LVII, § 5226, Dec. 23, 2016, 130 Stat. 2910; Pub. L. 117–81, div. A, title V, § 538, Dec. 27, 2021, 135 Stat. 1698.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 844(a) ...... 844(b) ...... 844(c) ...... 50:619(a). 50:619(b). 50:619(c). May 5, 1950, ch. 169, § 1 (Art. 44), 64 Stat. 122. In subsection (a), the word ‘‘may’’ is substituted for the word ‘‘shall’’. In subsection (b), the word ‘‘is’’ is substituted for the words ‘‘shall be held to be’’. In subsection (c), the word ‘‘after’’ is substituted for the words ‘‘subsequent to’’. The word ‘‘before’’ is sub- stituted for the words ‘‘prior to’’. The word ‘‘is’’ is sub- stituted for the words ‘‘shall be’’. Editorial Notes AMENDMENTS 2021—Subsec. (c). Pub. L. 117–81 inserted ‘‘or the spe- cial trial counsel’’ after ‘‘the convening authority’’ in two places. 2016—Subsec. (c). Pub. L. 114–328 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as fol- lows: ‘‘A proceeding which, after the introduction of evidence but before a finding, is dismissed or termi- nated by the convening authority or on motion of the prosecution for failure of available evidence or wit- nesses without any fault of the accused is a trial in the sense of this article.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with pro- visions for delayed effect and applicability if regula- tions are not prescribed by the President before the date that is two years after Dec. 27, 2021, see section 539C of Pub. L. 117–81, 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. § 845. Art. 45. Pleas of the accused (a) IRREGULAR AND SIMILAR PLEAS.—If an ac- cused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty. (b) PLEAS OF GUILTY.—A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty is mandatory. With respect to any other charge or specification to which a plea of guilty has been made by the accused and accept- ed by the military judge, a finding of guilty of the charge or specification may be entered im- mediately without vote. This finding shall con- stitute 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 plead- ed not guilty. (c) HARMLESS ERROR.—A variance from the re- quirements of this article is harmless error if the variance does not materially prejudice the substantial rights of the accused. (Aug. 10, 1956, ch. 1041, 70A Stat. 52; Pub. L. 90–632, § 2(19), Oct. 24, 1968, 82 Stat. 1339; Pub. L. 114–328, div. E, title LVII, § 5227, Dec. 23, 2016, 130 Stat. 2911.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 845(a) ...... 845(b) ...... 50:620(a). 50:620(b). May 5, 1950, ch. 169, § 1 (Art. 45), 64 Stat. 122. Page 762 TITLE 10—ARMED FORCES § 846 In subsection (b), the word ‘‘may’’ is substituted for the word ‘‘shall’’. Editorial Notes AMENDMENTS 2016—Subsec. (a). Pub. L. 114–328, § 5227(c)(1), inserted heading. Subsec. (b). Pub. L. 114–328, § 5227(c)(2), inserted head- ing. Pub. L. 114–328, § 5227(a), substituted ‘‘is mandatory’’ for ‘‘may be adjudged’’ and struck out ‘‘or by a court- martial without a military judge’’ after ‘‘by the mili- tary judge’’ and ‘‘, if permitted by regulations of the Secretary concerned,’’ after ‘‘charge or specification may’’. Subsec. (c). Pub. L. 114–328, § 5227(b), added subsec. (c). 1968—Subsec. (a). Pub. L. 90–632, § 2(19)(A), substituted ‘‘after arraignment’’ for ‘‘arraigned before a court-mar- tial’’. Subsec. (b). Pub. L. 90–632, § 2(19)(B), inserted provi- sions covering the making and accepting of a guilty plea to charges or specifications other than charges and specifications alleging an offense for which the death penalty may be adjudged. 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. § 846. Art. 46. Opportunity to obtain witnesses and other evidence in trials by court-martial (a) OPPORTUNITY TO OBTAIN WITNESSES AND OTHER EVIDENCE.—In a case referred for trial by court-martial, the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evi- dence in accordance with such regulations as the President may prescribe. (b) SUBPOENA AND OTHER PROCESS GEN- ERALLY.—Any subpoena or other process issued under this section (article)— (1) shall be similar to that which courts of the United States having criminal jurisdiction may issue; (2) shall be executed in accordance with reg- ulations prescribed by the President; and (3) shall run to any part of the United States and to the Commonwealths and possessions of the United States. (c) SUBPOENA AND OTHER PROCESS FOR WIT- NESSES.—A subpoena or other process may be issued to compel a witness to appear and tes- tify— (1) before a court-martial, military commis- sion, or court of inquiry; (2) at a deposition under section 849 of this title (article 49); or (3) as otherwise authorized under this chap- ter. (d) SUBPOENA AND OTHER PROCESS FOR EVI- DENCE.— (1) IN GENERAL.—A subpoena or other process may be issued to compel the production of evi- dence— (A) for a court-martial, military commis- sion, or court of inquiry; (B) for a deposition under section 849 of this title (article 49); (C) for an investigation of an offense under this chapter; or (D) as otherwise authorized under this chapter. (2) INVESTIGATIVE SUBPOENA.—An investiga- tive subpoena under paragraph (1)(C) may be issued before referral of charges to a court- martial only if a general court-martial con- vening authority has authorized counsel for the Government to issue such a subpoena or a military judge issues such a subpoena pursu- ant to section 830a of this title (article 30a). (3) WARRANT OR ORDER FOR WIRE OR ELEC- TRONIC COMMUNICATIONS.—With respect to an investigation of an offense under this chapter, a military judge detailed in accordance with section 826 or 830a of this title (article 26 or 30a) may issue warrants or court orders for the contents of, and records concerning, wire or electronic communications in the same man- ner as such warrants and orders may be issued by a district court of the United States under chapter 121 of title 18, subject to such limita- tions as the President may prescribe by regu- lation. (e) REQUEST FOR RELIEF FROM SUBPOENA OR OTHER PROCESS.—If a person requests relief from a subpoena or other process under this section (article) on grounds that compliance is unrea- sonable or oppressive or is prohibited by law, a military judge detailed in accordance with sec- tion 826 or 830a of this title (article 26 or 30a) shall review the request and shall— (1) order that the subpoena or other process be modified or withdrawn, as appropriate; or (2) order the person to comply with the sub- poena or other process. (Aug. 10, 1956, ch. 1041, 70A Stat. 53; Pub. L. 109–163, div. A, title X, § 1057(a)(6), Jan. 6, 2006, 119 Stat. 3441; Pub. L. 113–66, div. A, title XVII, § 1704, Dec. 26, 2013, 127 Stat. 958; Pub. L. 113–291, div. A, title V, § 531(b), Dec. 19, 2014, 128 Stat. 3363; Pub. L. 114–328, div. E, title LVII, § 5228(a), Dec. 23, 2016, 130 Stat. 2911.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 846 .......... 50:621. May 5, 1950, ch. 169, § 1 (Art. 46), 64 Stat. 122. The word ‘‘Commonwealths’’ is inserted to reflect the present status of Puerto Rico. Editorial Notes AMENDMENTS 2016—Pub. L. 114–328, § 5228(a)(5), amended section catchline generally, substituting ‘‘Opportunity to ob- tain witnesses and other evidence in trials by court- martial’’ for ‘‘Opportunity to obtain witnesses and other evidence’’. Subsec. (a). Pub. L. 114–328, § 5228(a)(1), substituted ‘‘In a case referred for trial by court-martial, the trial