10 U.S.C. § 835 — Art. 35. Service of charges; commencement

Page 751 TITLE 10—ARMED FORCES § 835 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 beginning after Dec. 6, 1983, but not to apply to any case in which charges were referred to trial before that date, and proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (3) of Pub. L. 98–209, set out as a note under section 801 of this title. REVIEW OF DECISIONS NOT TO REFER CHARGES OF CER- TAIN SEX-RELATED OFFENSES FOR TRIAL BY COURT- MARTIAL Pub. L. 113–66, div. A, title XVII, § 1744, Dec. 26, 2013, 127 Stat. 980, as amended by Pub. L. 113–291, div. A, title V, § 541, Dec. 19, 2014, 128 Stat. 3371, provided that: ‘‘(a) REVIEW REQUIRED.— ‘‘(1) IN GENERAL.—The Secretary of Defense shall re- quire the Secretaries of the military departments to provide for review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged of- fense. ‘‘(2) SPECIFIC REVIEW REQUIREMENTS.—As part of a review conducted pursuant to paragraph (1), the Sec- retary of a military department shall require that— ‘‘(A) consideration be given to the victim’s state- ment provided during the course of the criminal in- vestigation regarding the alleged sex-related of- fense perpetrated against the victim; and ‘‘(B) a determination be made whether the vic- tim’s statement and views concerning disposition of the alleged sex-related offense were considered by the convening authority in making the referral de- cision. ‘‘(b) SEX-RELATED OFFENSE DEFINED.—In this section, the term ‘sex-related offense’ means any of the fol- lowing: ‘‘(1) Rape or sexual assault under subsection (a) or (b) of section 920 of title 10, United States Code (arti- cle 120 of the Uniform Code of Military Justice). ‘‘(2) Forcible sodomy under section 925 of such title (article 125 of the Uniform Code of Military Justice). ‘‘(3) An attempt to commit an offense specified in paragraph (1) or (2) as punishable under section 880 of such title (article 80 of the Uniform Code of Military Justice). ‘‘(c) REVIEW OF CERTAIN CASES NOT REFERRED TO COURT-MARTIAL.— ‘‘(1) CASES NOT REFERRED FOLLOWING STAFF JUDGE ADVOCATE RECOMMENDATION FOR REFERRAL FOR TRIAL.—In any case where a staff judge advocate, pur- suant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice), recommends that charges of a sex-related offense be referred for trial by court-martial and the convening authority decides not to refer any charges to a court- martial, the convening authority shall forward the case file to the Secretary of the military department concerned for review as a superior authorized to exer- cise general court-martial convening authority. ‘‘(2) CASES NOT REFERRED BY CONVENING AUTHORITY UPON REQUEST FOR REVIEW BY CHIEF PROSECUTOR.— ‘‘(A) IN GENERAL.—In any case where a convening authority decides not to refer a charge of a sex-re- lated offense to trial by court-martial, the Sec- retary of the military department concerned shall review the decision as a superior authority author- ized to exercise general court-martial convening authority if the chief prosecutor of the Armed Force concerned, in response to a request by the de- tailed counsel for the Government, requests review of the decision by the Secretary. ‘‘(B) CHIEF PROSECUTOR DEFINED.—In this para- graph, the term ‘chief prosecutor’ means the chief prosecutor or equivalent position of an Armed Force, or, if an Armed Force does not have a chief prosecutor or equivalent position, such other trial counsel as shall be designated by the Judge Advo- cate General of that Armed Force, or in the case of the Marine Corps, the Staff Judge Advocate to the Commandant of the Marine Corps. ‘‘(d) REVIEW OF CASES NOT REFERRED TO COURT-MAR- TIAL FOLLOWING STAFF JUDGE ADVOCATE RECOMMENDA- TION NOT TO REFER FOR TRIAL.—In any case where a staff judge advocate, pursuant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice), recommends that charges of a sex-re- lated offense should not be referred for trial by court- martial and the convening authority decides not to refer any charges to a court-martial, the convening au- thority shall forward the case file for review to the next superior commander authorized to exercise gen- eral court-martial convening authority. ‘‘(e) ELEMENTS OF CASE FILE.—A case file forwarded to higher authority for review pursuant to subsection (c) or (d) shall include the following: ‘‘(1) All charges and specifications preferred under section 830 of title 10, United States Code (article 30 of the Uniform Code of Military Justice). ‘‘(2) All reports of investigations of such charges, including the military criminal investigative organi- zation investigation report and the report prepared under section 832 of title 10, United States Code (arti- cle 32 of the Uniform Code of Military Justice), as amended by section 1702. ‘‘(3) A certification that the victim of the alleged sex-related offense was notified of the opportunity to express views on the victim’s preferred disposition of the alleged offense for consideration by the con- vening authority. ‘‘(4) All statements of the victim provided to the military criminal investigative organization and to the victim’s chain of command relating to the alleged sex-related offense and any statement provided by the victim to the convening authority expressing the victim’s view on the victim’s preferred disposition of the alleged offense. ‘‘(5) The written advice of the staff judge advocate to the convening authority pursuant to section 834 of title 10, United States Code (article 34 of the Uniform Code of Military Justice). ‘‘(6) A written statement explaining the reasons for the convening authority’s decision not to refer any charges for trial by court-martial. ‘‘(7) A certification that the victim of the alleged sex-related offense was informed of the convening authority’s decision to forward the case as provided in subsection (c) or (d). ‘‘(f) NOTICE ON RESULTS OR REVIEW.—The victim of the alleged sex-related offense shall be notified of the results of the review conducted under subsection (c) or (d) in the manner prescribed by the victims and witness assistance program of the Armed Force concerned. ‘‘(g) VICTIM ALLEGATION OF SEX-RELATED OFFENSE.— The Secretary of Defense shall require the Secretaries of the military departments to develop a system to en- sure that a victim of a possible sex-related offense under the Uniform Code of Military Justice is given the opportunity to state, either at the time of making an unrestricted report of the allegation or during the criminal investigation of the allegation, whether or not the victim believes that the offense alleged is a sex-re- lated offense subject to the requirements of this sec- tion.’’ § 835. Art. 35. Service of charges; commencement of trial (a) IN GENERAL.—Trial counsel detailed for a court-martial under section 827 of this title (ar- ticle 27) shall cause to be served upon the ac- cused a copy of the charges and specifications referred for trial. 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.