Chapter 322

322.034(2) (2) The advice of the judge advocate under sub. (1) with respect to a specification under a charge shall include a written and signed statement by the judge advocate that does all of the following:

322.034(2)(a) (a) Expresses conclusions with respect to each matter set forth in sub. (1).

322.034(2)(b) (b) Recommends action that the convening authority take regarding the specification.

322.034(3) (3) If the specification is referred for trial, the recommendation of the judge advocate shall accompany the specification.

322.034(4) (4) If the charges or specifications are not correct formally or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and changes in the charges and specifications as are needed to make them conform to the evidence, may be made.

322.034 History History: 2007 a. 200; 2009 a. 179.

322.035 322.035 Article 35 — Service of charges. The trial counsel shall serve or cause to be served upon the accused a copy of the charges. No person may, against the person’s objection, be brought to trial before a general court-martial case within a period of 5 days after the service of charges upon the accused or, in a special court-martial, within a period of 3 days after the service of charges upon the accused.

322.035 History History: 2007 a. 200; 2009 a. 179.

subch. VII of ch. 322 SUBCHAPTER VII

TRIAL PROCEDURE

322.036 322.036 Article 36 — Pretrial, trial, and post-trial procedures. Pretrial, trial, and post-trial procedures not specified in this code, including modes of proof, for courts-martial cases arising under this code and for courts of inquiry shall be prescribed by the adjutant general in writing and made publicly available on the department of military affairs’ website.

322.036 History History: 2007 a. 200; 2023 a. 47.

322.037 322.037 Article 37 — Unlawfully influencing action of court.

322.037(1) (1) No authority convening a general, special, or summary court-martial, nor any other commanding officer, or officer serving on the commanding officer’s staff, may censure, reprimand, or admonish the court or any member, the military judge, or counsel, with respect to the findings or sentence adjudged by the court or with respect to any other exercise of its or their functions in the conduct of the proceedings. No person subject to this code may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or court of inquiry or any member, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to their judicial acts. This subsection does not apply with respect to the any of the following:

322.037(1)(a) (a) General instructional or informational courses in military justice if the courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial.

322.037(1)(b) (b) Statements and instructions given in open court by the military judge, summary court-martial officer, or counsel.

322.037(2) (2) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the state military forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the state military forces, or in determining whether a member of the state military forces should be retained on active status, no person subject to this code may, in preparing any report, do any of the following:

322.037(2)(a) (a) Consider or evaluate the performance of duty of any member as a member of a court-martial or witness.

322.037(2)(b) (b) Give a less favorable rating or evaluation of any counsel of the accused because of zealous representation before a court-martial.

322.037 History History: 2007 a. 200; 2009 a. 179.

322.038 322.038 Article 38 — Duties of trial counsel and defense counsel.

322.038(1) (1) The trial counsel of a general or special court-martial shall be an attorney licensed to practice in this state and shall prosecute in the name of the state, and shall, under the direction of the court, prepare the record of the proceedings.

322.038(2) (2) 

322.038(2)(a) (a) The accused has the right to be represented in defense before a general or special court-martial or at an investigation under s. 322.032.

322.038(2)(b) (b) The accused may be represented by civilian counsel at the provision and expense of the accused.

322.038(2)(c) (c) The accused may be represented by any of the following:

322.038(2)(c)1. 1. Military counsel detailed under s. 322.027.

322.038(2)(c)2. 2. Military counsel of the accused’s own selection if that counsel is reasonably available as determined under par. (g).

322.038(2)(d) (d) If the accused is represented by civilian counsel, military counsel detailed or selected under par. (c) shall act as associate counsel unless excused by the military judge at the request of the accused.

322.038(2)(e) (e) Except as provided under par. (f), if the accused is represented by military counsel of his or her own selection under par. (c) 2., any military counsel detailed under par. (c) 1. shall be excused.

322.038(2)(f) (f) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under s. 322.027 to detail counsel, in that person’s sole discretion may do any of the following:

322.038(2)(f)1. 1. Detail additional military counsel as assistant defense counsel.

322.038(2)(f)2. 2. If the accused is represented by military counsel of the accused’s own selection under par. (c) 2., approve a request from the accused that military counsel detailed under par. (c) 1. act as associate defense counsel.

322.038(2)(g) (g) The senior force judge advocate of the same force of which the accused is a member, shall determine whether the military counsel selected by an accused is reasonably available.

322.038(3) (3) In any court-martial proceeding resulting in a conviction, the defense counsel may do any of the following:

322.038(3)(a) (a) Forward for attachment to the record of proceedings a brief of matters as counsel determines should be considered in behalf of the accused on review, including any objection to the contents of the record which counsel considers appropriate.

322.038(3)(b) (b) Assist the accused in the submission of any matter under s. 322.060.

322.038(3)(c) (c) Take other action authorized by this code.

322.038 History History: 2007 a. 200; 2009 a. 179.

322.039 322.039 Article 39 — Sessions.

322.039(1) (1) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to s. 322.035, call the court into session without the presence of the members for the purpose of any of the following:

322.039(1)(a) (a) Hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty.

322.039(1)(b) (b) Hearing and ruling upon any matter which may be ruled upon by the military judge under this code, whether or not the matter is appropriate for later consideration or decision by the members of the court.

322.039(1)(c) (c) Holding the arraignment and receiving the pleas of the accused.

322.039(1)(d) (d) Performing any other procedural function which does not require the presence of the members of the court under this code.

322.039(2) (2) These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. These proceedings may be conducted notwithstanding the number of court members and without regard to s. 322.029.

322.039(3) (3) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and the military judge.

322.039 History History: 2007 a. 200.

322.040 322.040 Article 40 — Continuances. The military judge of a court-martial or a summary court-martial may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.

322.040 History History: 2007 a. 200; 2009 a. 179.

322.041 322.041 Article 41 — Challenges.

322.041(1) (1) 

322.041(1)(a) (a) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge or the court shall determine the relevancy and validity of challenges for cause and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.

322.041(1)(b) (b) If exercise of a challenge for cause reduces the court below the minimum number of members required by s. 322.016, all parties shall, notwithstanding s. 322.029, either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court. However, peremptory challenges shall not be exercised at that time.

322.041(2) (2) 

322.041(2)(a) (a) Each accused and the trial counsel are entitled initially to one peremptory challenge of members of the court. The military judge may not be challenged except for cause.

322.041(2)(b) (b) If exercise of a peremptory challenge reduces the court below the minimum number of members required by s. 322.016, the parties shall, notwithstanding s. 322.029, either exercise or waive any remaining peremptory challenge, not previously waived, against the remaining members of the court before additional members are detailed to the court.

322.041(2)(c) (c) Whenever additional members are detailed to the court, and after any challenges for cause against additional members are presented and decided, each accused and the trial counsel are entitled to one peremptory challenge against members not previously subject to peremptory challenge.

322.041 History History: 2007 a. 200.

322.042 322.042 Article 42 — Oaths or affirmations.

322.042(1) (1) Before performing their respective duties, military judges, general and special courts-martial members, trial counsel, defense counsel, reporters, and interpreters shall take an oath or affirmation in the presence of the accused to perform their duties faithfully. The form of the oath or affirmation, the time and place of the taking, the manner of recording the same, and whether the oath or affirmation shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulation or as provided by law. These regulations may provide that an oath or affirmation to perform faithfully the duties as a military judge, trial counsel, or defense counsel may be taken at any time by any judge advocate or other person certified or designated to be qualified or competent for the duty, and if an oath or affirmation is taken, it need not again be taken at the time the judge advocate or other person is detailed to that duty.

322.042(2) (2) Each witness before a court-martial shall be examined under oath or affirmation.

322.042 History History: 2007 a. 200.

322.043 322.043 Article 43 — Statute of limitations.

322.043(1) (1) Except as otherwise provided in this section, a person charged with any offense is not liable to be tried by court-martial or punished under s. 322.015 if the offense was committed more than 3 years before the receipt of sworn charges and specifications by an officer exercising court-martial jurisdiction over the command or before the imposition of punishment under s. 322.015.

322.043(2) (2) Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in this section.

322.043(3) (3) Periods in which the accused was absent from territory in which the state has the authority to apprehend him or her, or in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this section.

322.043(4) (4) When the United States is at war based on a congressional declaration or by presidential declaration under the Global War on Terror, the running of any statute of limitations is suspended until 2 years after the termination of hostilities, as proclaimed by the president or by a joint resolution of congress, and the suspension is applicable to any offense under this code under any of the following circumstances:

322.043(4)(a) (a) The offense involves fraud or attempted fraud against the United States, any state, or any agency of either in any manner, whether by conspiracy or not.

322.043(4)(b) (b) The offense is committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the United States or any state.

322.043(4)(c) (c) The offense is committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or government agency.

322.043(5) (5) 

322.043(5)(a) (a) If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations has expired, or will expire within 180 days after the date of dismissal of the charges and specifications, trial and punishment under new charges and specifications are not barred by the statute of limitations if the conditions specified in par. (b) are met.

322.043(5)(b) (b) The conditions referred to in par. (a) are that the new charges and specifications satisfy all of the following:

322.043(5)(b)1. 1. Be received by an officer exercising summary court-martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications.

322.043(5)(b)2. 2. Allege the same acts or omissions that were alleged in the dismissed charges or specifications, or allege acts or omissions that were included in the dismissed charges or specifications.

322.043 History History: 2007 a. 200; 2009 a. 179.

322.044 322.044 Article 44 — Former jeopardy.

322.044(1) (1) No person may, without his or her consent, be tried a 2nd time for the same offense.

322.044(2) (2) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial under this section until the finding of guilty has become final after review of the case has been fully completed.

322.044(3) (3) A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial under this section.

322.044 History History: 2007 a. 200.

322.045 322.045 Article 45 — Pleas of the accused.

322.045(1) (1) If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty.

322.045(2) (2) With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute 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 pleaded not guilty.

322.045 History History: 2007 a. 200.

322.046 322.046 Article 46 — Opportunity to obtain witnesses and other evidence. The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence as prescribed by regulations and provided by law. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall apply the principles of law and the rules of courts-martial generally recognized in military criminal cases in the courts of the armed forces of the United States, but which may not be contrary to or inconsistent with this code. Process shall run to any part of the United States, or the territories, commonwealths, and possessions, and may be executed by civil officers as prescribed by the laws of the place where the witness or evidence is located or of the United States.

322.046 History History: 2007 a. 200.

322.047 322.047 Article 47 — Refusal to appear or testify.