The original instrument was prepared by J. Ashley Mitchell Carter. The following
digest, which does not constitute a part of the legislative instrument, was prepared
by Ashley Menou.
DIGEST
SB 147 Engrossed 2017 Regular Session Riser
Present law provides that the public advertising and bidding procedures will not apply to the military
when leasing airport space for military purposes.
Proposed law retains present law and extends the exception to the leasing of military facilities and
reservations when the leasing of such is for military purpose.
Present law provides that the code applies to all members of the military forces when they are not
subject to the Uniform Code of Military Justice and while in a duty status or when the member is
under lawful order to be in a duty status.
Proposed law extends the jurisdiction of the commanders to include that a court-martial or court of
inquiry can be convened and held in a unit serving outside of the state, granting the court the same
jurisdiction and powers of the court-martial inside of the state.
Proposed law further adds that an offense committed outside of the state can be tried and punished
either inside or outside of the state. This applies to active National Guard members when the federal
convening authority declines to convene a court-martial under the Uniform Code of Military Justice.
Proposed law provides that proposed law applies to all members regardless of duty status of the
accused whenever there is a clear and convincing nexus between an offense and the state military
force. However, when a member is in active duty status in accordance to present law, there shall be
a rebuttable presumption that subject matter jurisdiction exists.
Proposed law retains present law concerning courts-martial classified but proposed law adds
authority for the accused to waive his right to a trial by members, but requires that it must be
exercised prior to 45 days before the beginning of the trial on the merits in the court-martial. Once
the waiver has been exercised, it cannot be revoked.
Proposed law changes the amount of time that a commanding officer can sentence a National Guard
member to confinement from one week to 30 days. Proposed law otherwise retains present law
sentence allowances concerning summary courts-martial.
Present law provides that a thorough and impartial investigation must be conducted as to the truth
of the matter, consideration of the charges, and a recommendation of the disposition prior to any
charges or specification being referred to a general court-martial for hearing.
Proposed law changes present law to require a preliminary hearing prior to any charges or specification being referred to a general court-martial for hearing, unless the hearing is waived by
the accused.
Proposed law also provides that the scope of the preliminary hearing will be limited to:
(1)Determining whether there is probable cause to believe an offense has been committed and
the accused committed the offense;
(2)Determining whether the convening authority has court-martial jurisdiction over the offense
and the accused;
(3)Considering the form of the charges; and
(4)Recommending the disposition that should be made of the case.
Proposed law further provides a preliminary hearing will be conducted by an impartial judge
advocate certified under present law whenever practicable or, in exceptional circumstances by an
impartial hearing officer who is not a judge advocate. If the hearing officer is not a judge advocate,
a judge advocate certified under present law will be available to provide legal advice to the hearing
officer.
Proposed law provides that when the judge advocate or other hearing officer is detailed to conduct
the preliminary hearing, the officer will be equal to or senior in grade to military counsel. After a
hearing has been conducted, a report addressing the matters will be prepared. The accused will be
advised of the charges against him and of his rights and can cross-examine witnesses who testify at
the preliminary hearing and present evidence relevant to the limited scope of the hearing.
Proposed law also adds that a victim may not be required to testify at the preliminary hearing and
when a victim declines to testify, and in such instances the victim will be deemed unavailable for
purposes of the preliminary hearing. The presentation of evidence and examination will be limited
to the matters relevant to the scope of the hearing and the hearing will be recorded and the victim
may request the recording and shall have access to the recording as prescribed by the Manual for
Courts-Martial.
Proposed law adds that if evidence adduced in a preliminary hearing indicates that the accused
committed an uncharged offense, the hearing officer may consider the subject matter of that offense
without the accused having first been charged with the offense if the accused:
(1)Is present at the preliminary hearing;
(2)Is informed of the nature of each uncharged offense considered; and
(3)Is afforded the opportunities for representation, cross-examination, and presentation.
Proposed law defines "victim" for purposes of proposed law. Present law provides that the procedure, including modes of proof, in cases before military courts
may be prescribed by the governor 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 Louisiana, but which may not be contrary to or inconsistent with the Louisiana Code of
Military Justice.
Proposed law provides that the procedure in cases before military courts shall be the federal Rules
for Courts-Martial, as published in the most recent version of the Manual for Courts-Martial, United
States, except when such rules are contrary to or inconsistent with the Louisiana Code of Military
Justice. Provides that the modes of proof in cases before courts-martial shall be the federal Military
Rules of Evidence, as prescribed in the most recent version of the Manual for Courts-Martial, United
States, except when such rules are contrary or inconsistent with the Louisiana Code of Military
Justice. Authorizes the governor or adjutant general to promulgate additional rules and regulation
regarding courts-martial procedure.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Amends R.S. 29:40, 102, 116, 120(C)(1), 132, and 136)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary B to the original bill
1. Makes technical changes.