10 U.S.C. § 851 — Art. 51. Voting and rulings

Page 767 TITLE 10—ARMED FORCES § 851 (2) not guilty; or (3) not guilty only by reason of lack of men- tal responsibility. (e) Notwithstanding the provisions of section 852 of this title (article 52), the accused shall be found not guilty only by reason of lack of men- tal responsibility if— (1) a majority of the members of the court- martial present at the time the vote is taken determines that the defense of lack of mental responsibility has been established; or (2) in the case of a court-martial composed of a military judge only, the military judge determines that the defense of lack of mental responsibility has been established. (Added Pub. L. 99–661, div. A, title VIII, § 802(a)(1), Nov. 14, 1986, 100 Stat. 3905; Pub. L. 114–328, div. E, title LVII, § 5233, Dec. 23, 2016, 130 Stat. 2915.) Editorial Notes AMENDMENTS 2016—Subsec. (c). Pub. L. 114–328, in introductory pro- visions, struck out ‘‘, or the president of a court-mar- tial without a military judge,’’ after ‘‘the military judge’’. 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 Pub. L. 99–661, div. A, title VIII, § 802(b), Nov. 14, 1986, 100 Stat. 3906, provided that: ‘‘Section 850a of title 10, United States Code, as added by subsection (a)(1), shall apply only to offenses committed on or after the date of the enactment of this Act [Nov. 14, 1986].’’ § 851. Art. 51. Voting and rulings (a) Voting by members of a general or special court-martial on the findings and on the sen- tence shall be by secret written ballot. The jun- ior member of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court. (b) The military judge shall rule upon all ques- tions of law and all interlocutory questions aris- ing during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused is final and constitutes the ruling of the court, except that the military judge may change a ruling at any time during trial. (c) Before a vote is taken on the findings, the military judge shall, in the presence of the ac- cused and counsel, instruct the members of the court as to the elements of the offense and charge them— (1) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt; (2) that in the case being considered, if there is a reasonable doubt as to the guilt of the ac- cused, the doubt must be resolved in favor of the accused and he must be acquitted; (3) that, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reason- able doubt; and (4) that the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the United States. (d) Subsections (a), (b), and (c) do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the ac- cused is convicted, adjudge an appropriate sen- tence. The military judge of such a court-mar- tial shall make a general finding and shall in ad- dition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein. (Aug. 10, 1956, ch. 1041, 70A Stat. 54; Pub. L. 90–632, § 2(21), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 114–328, div. E, title LVII, § 5234, Dec. 23, 2016, 130 Stat. 2915.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 851(a) ...... 851(b) ...... 50:626(a). 50:626(b). May 5, 1950, ch. 169, § 1 (Art. 51), 64 Stat. 124. 851(c) ...... 50:626(c). In subsection (a), the words ‘‘in each case’’ are omit- ted as surplusage. In subsection (b), the word ‘‘is’’ is substituted for the words ‘‘shall be’’ in the second sentence. The word ‘‘constitutes’’ is substituted for the words ‘‘shall con- stitute’’. The word ‘‘However,’’ is substituted for the word ‘‘but’’. The word ‘‘his’’ is substituted for the words ‘‘any such’’. The words ‘‘the ruling is’’ are sub- stituted for the words ‘‘such ruling be’’. The words ‘‘voice vote’’ are substituted for the words ‘‘vote * * * viva voce’’. In subsection (c), the word ‘‘must’’ is substituted for the word ‘‘shall’’ in clause (2), since a condition is pre- scribed, not a command. The words ‘‘United States’’ are substituted for the word ‘‘Government’’. Editorial Notes AMENDMENTS 2016—Subsec. (a). Pub. L. 114–328, § 5234(1), struck out ‘‘, and by members of a court-martial without a mili- tary judge upon questions of challenge,’’ after ‘‘on the sentence’’. Subsec. (b). Pub. L. 114–328, § 5234(2), struck out ‘‘and, except for questions of challenge, the president of a court-martial without a military judge’’ after ‘‘The military judge’’ and substituted ‘‘is final and con- stitutes the ruling of the court, except that the mili- tary judge may change a ruling at any time during trial.’’ for ‘‘, or by the president of a court-martial without a military judge upon any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court. However, the military judge or the president of a court-martial with- out a military judge may change his ruling at any time during trial. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in section 852 of this title (article 52), beginning with the junior in rank.’’ Page 768 TITLE 10—ARMED FORCES § 852 Subsec. (c). Pub. L. 114–328, § 5234(3), struck out ‘‘or the president of a court-martial without a military judge’’ after ‘‘the military judge’’ in introductory pro- visions. 1968—Subsec. (a). Pub. L. 90–632, § 2(21)(A), limited the balloting on the question of challenges to courts-mar- tial without military judges. Subsec. (b). Pub. L. 90–632, § 2(21)(B), substituted ‘‘military judge’’ for ‘‘law officer’’ and inserted ref- erence to the military judge’s ruling upon challenges for cause when a military judge is part of a court-mar- tial and reference to questions of law. Subsec. (c). Pub. L. 90–632, § 2(21)(C), substituted ‘‘military judge’’ for ‘‘law officer’’ and made minor changes in phraseology eliminating the division be- tween general and special court-martials. Subsec. (d). Pub. L. 90–632, § 2(21)(D), added subsec. (d). 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. § 852. Art. 52. Votes required for conviction, sen- tencing, and other matters (a) IN GENERAL.—No person may be convicted of an offense in a general or special court-mar- tial, other than— (1) after a plea of guilty under section 845(b) of this title (article 45(b)); (2) by a military judge in a court-martial with a military judge alone, under section 816 of this title (article 16); or (3) in a court-martial with members under section 816 of this title (article 16), by the con- currence of at least three-fourths of the mem- bers present when the vote is taken. (b) LEVEL OF CONCURRENCE REQUIRED.— (1) IN GENERAL.—Except as provided in sub- section (a) and in paragraph (2), all matters to be decided by members of a general or special court-martial shall be determined by a major- ity vote, but a reconsideration of a finding of guilty or reconsideration of a sentence, with a view toward decreasing the sentence, may be made by any lesser vote which indicates that the reconsideration is not opposed by the num- ber of votes required for that finding or sen- tence. (2) SENTENCING.—A sentence of death re- quires (A) a unanimous finding of guilty of an offense in this chapter expressly made punish- able by death and (B) a unanimous determina- tion by the members that the sentence for that offense shall include death. All other sen- tences imposed by members shall be deter- mined by the concurrence of at least three- fourths of the members present when the vote is taken. (Aug. 10, 1956, ch. 1041, 70A Stat. 55; Pub. L. 90–632, § 2(22), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 114–328, div. E, title LVII, § 5235, Dec. 23, 2016, 130 Stat. 2916.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 852(a) ...... 852(b) ...... 50:627(a). 50:627(b) May 5, 1950, ch. 169, § 1 (Art. 52), 64 Stat. 125. 852(c) ...... 50:627(c). In subsections (a) and (b), the word ‘‘may’’ is sub- stituted for the word ‘‘shall’’. In subsection (b)(2), the words ‘‘for more than’’ are substituted for the words ‘‘in excess of’’. In subsection (c), the word ‘‘disqualifies’’ is sub- stituted for the words ‘‘shall disqualify’’. The word ‘‘is’’ is substituted for the words ‘‘shall be’’ in the last two sentences. Editorial Notes AMENDMENTS 2016—Pub. L. 114–328 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (c) relating to number of votes required for conviction of an offense for which the death penalty is mandatory, sentences, and all other questions, respectively. 1968—Subsec. (a)(2). Pub. L. 90–632, § 2(22)(A), inserted reference to the exception provided in section 845(b) of this title (article 45(b)). Subsec. (c). Pub. L. 90–632, § 2(22)(B), provided that a determination to reconsider a finding of guilty or to re- consider a sentence, with a view toward decreasing it, may be made by a vote of less than a majority vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sen- tence. 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. § 853. Art. 53. Findings and sentencing (a) ANNOUNCEMENT.—A court-martial shall an- nounce its findings and sentence to the parties as soon as determined. (b) SENTENCING GENERALLY.— (1) GENERAL AND SPECIAL COURTS-MARTIAL.— Except as provided in subsection (c) for capital offenses, if the accused is convicted of an of- fense in a trial by general or special court- martial, the military judge shall sentence the accused. The sentence determined by the mili- tary judge constitutes the sentence of the court-martial. (2) SUMMARY COURTS-MARTIAL.—If the ac- cused is convicted of an offense in a trial by summary court-martial, the court-martial shall sentence the accused. (c) SENTENCING FOR CAPITAL OFFENSES.— (1) IN GENERAL.—In a capital case, if the ac- cused is convicted of an offense for which the court-martial may sentence the accused to death— (A) the members shall determine—