ENROLLED
ACT No. 373
2019 Regular Session
HOUSE BILL NO. 360
BY REPRESENTATIVES JONES AND FOIL AND SENATOR RISER
1 AN ACT
2 To amend and reenact R.S. 29:101(A), 103, 106(E), 110, 115(D), 116(A), 118, 119, 120(A)
3 and (B), 125(C) and (D), 126(B), (C), and (D), 127(A) and (C), 128, 129, 130,
4 132(A), (B), (C), (D), (E), and (G), 134, 135, 138, 139, 140, 141, 142, 143, 145(B),
5 146, 147(A), 149, 150, 153, and 154 and to enact R.S. 29:102(D), 106a, 125(E) and
6 (F), 126(F), 126a, 130a, 145(C), and 153a, relative to the military forces of the state;
7 to provide relative to military justice; to provide for definitions; to provide relative
8 to jurisdiction; to provide for types of military courts; to provide for military legal
9 proceedings; to provide relative to jurisdiction, procedure, applicability, punishment,
10 military magistrates, duties, rights of the accused, plea agreements, and records; and
11 to provide for related matters.
12 Be it enacted by the Legislature of Louisiana:
13 Section 1. R.S. 29:101(A), 103, 106(E), 110, 115(D), 116(A), 118, 119, 120(A) and
14 (B), 125(C) and (D), 126(B), (C), and (D), 127(A) and (C), 128, 129, 130, 132(A), (B), (C),
15 (D), (E), and (G), 134, 135, 138, 139, 140, 141, 142, 143, 145(B), 146, 147(A), 149, 150,
16 153, and 154 are hereby amended and reenacted and R.S. 29:102(D), 106a, 125(E) and (F),
17 126(F), 126a, 130a, 145(C), and 153a are hereby enacted to read as follows:
18 PART II. LOUISIANA CODE OF MILITARY JUSTICE
19 SUBPART A. DEFINITIONS
20 §101. Article 1. Definitions
21 A. In this code, unless the context otherwise requires:
22 (1) "State military forces" means the national guard of the state, as defined
23 in Section 101(3), (4) and (6) of Title 32, United States Code, and any other military
24 forces organized under the laws of the state, when not in a status subjecting them to
25 jurisdiction under Chapter 47 of Title 10, United States Code.
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1 (2) "Commanding officer" includes only commissioned officers.
2 (3) "Superior commissioned officer" means a commissioned officer superior
3 in rank or command.
4 (4) "Enlisted member" means a person in an enlisted grade.
5 (5) "Grade" means a step or degree, in a graduated scale of office or military
6 rank, that is established and designated as a grade by law or regulation.
7 (6) "Rank" means the order of precedence among members of the state
8 military forces.
9 (7) "Duty status" means duty in the state military forces under an order
10 issued by authority of law, and includes travel to and from such duty.
11 (8) "Military court" means a court-martial or a court of inquiry.
12 (9) "Military judge" means an official of a general or special court-martial
13 detailed in accordance with R.S. 29:126. a judge advocate designated under R.S.
14 29:126(C) who is detailed under R.S.29:126a or 130a.
15 (10) "Legal officer" means any commissioned officer of the state military
16 forces designated to perform legal duties for a command.
17 (11)(10) "State judge advocate" means the commissioned officer responsible
18 for supervising the administration of military justice in the state military forces.
19 (12)(11) "Accuser" means a person who signs and swears to charges, any
20 person who directs that charges nominally be signed and sworn to by another, and
21 any person who has an interest other than an official interest in the prosecution of the
22 accused.
23 (13)(12) "State" means the state of Louisiana.
24 (14)(13) "Adjutant general" means the officer who, under the laws of this
25 state, performs the duties of that office. who is appointed by the governor under R.S.
26 29:10.
27 (15)(14) "Oath" includes affirmation.
28 (15) "Record" when used in connection with the proceedings of a court-
29 martial, means:
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1 (a) an official written transcript, written summary, or other writing related
2 to the proceedings; or
3 (b) an official audiotape, videotape, or similar material from which sound,
4 or sound and visual images, depicting the proceedings may be reproduced.
5 (16) "Classified information" means:
6 (a) any information or material that has been determined by an official of the
7 United States pursuant to law, an Executive Order, or regulation to require protection
8 against unauthorized disclosure for reasons of national security; and
9 (b) any restricted data, as defined in section 11(y) of the Atomic Energy Act
10 of 1954, 42 U.S.C. 2014(y).
11 (17) "National security" means the national defense and foreign relations of
12 the United States.
13 * * *
14 §102. Article 2. Persons subject to this code
15 * * *
16 D. This code applies to all persons in custody of a federal, state, or local
17 penal institution while serving a sentence imposed by a court-martial convened under
18 this Chapter.
19 §103. Article 3. Jurisdiction to try certain personnel
20 A. Subject to Article 43 of this Chapter, a person who is in a status in which
21 the person subject to this Chapter and who committed an offense against this Chapter
22 while formerly in a status in which the person was subject to this Chapter is not
23 relieved from amenability to the jurisdiction of this Chapter for that offense by
24 reason of a termination of that person's former status.
25 A.B. Each person discharged from the state military forces who is later
26 charged with having fraudulently obtained his discharge is subject to trial by court-
27 martial on that charge and is after apprehension subject to this code while in the
28 custody of the military for that trial. Upon conviction of that charge he is subject to
29 trial by court-martial for all offenses under this code committed before the fraudulent
30 discharge.
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1 B.C. No person who has deserted from the state military forces may be
2 relieved from amenability to the jurisdiction of this code by virtue of a separation
3 from any later period of service.
4 * * *
5 §106. Article 6. Judge advocates and legal officers
6 * * *
7 E. No person who has acted as a member, military judge, trial counsel,
8 assistant trial counsel, defense counsel, assistant defense counsel, or investigating
9 officer in any case may later act as staff judge advocate or legal officer to any
10 reviewing authority upon the same case. (1) No person who, with respect to a case,
11 serves in a capacity specified in Paragraph (2) of this Subsection may later serve as
12 a judge advocate or legal officer to any reviewing or convening authority upon the
13 same case.
14 (2) The capacities referred to in Paragraph (1) of this Subsection are, with
15 respect to the case involved, any of the following:
16 (a) Preliminary hearing officer, court member, military judge, military
17 magistrate, or appellate judge.
18 (b) Counsel who have acted in the same case or appeared in any proceeding
19 before a military judge, military magistrate, preliminary hearing officer, or appellate
20 court.
21 §106a. Article 6a. Investigation and disposition of matters pertaining to the fitness
22 of military judges
23 Procedures for the investigation and disposition of charges, allegations, or
24 information pertaining to the fitness of a military judge or military magistrate to
25 perform the duties of the position involved shall be determined in accordance with
26 procedures or regulations prescribed in Article 36 of this Code.
27 * * *
28 §110. Article 10. Restraint of persons charged with offenses
29 Any person subject to this code charged with an offense under this code may
30 be ordered into arrest or, under extraordinary circumstances, into confinement. When
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1 any person subject to this code is placed in arrest or confinement prior to trial, within
2 twenty-four hours of arrest or confinement, the accused shall be informed of the
3 specific wrong of which he is accused and appointed military defense counsel.
4 Arrest or confinement prior to trial shall not exceed seventy-two hours unless
5 approved by a military judge in writing which is provided to the appointed military
6 defense counsel.
7 A.(1) Subject to Paragraph (2) of this Subsection, any person subject to this
8 Chapter who is charged with an offense under this Chapter may be ordered into
9 arrest or confinement as the circumstances require.
10 (2) When a person subject to this Chapter is charged only with an offense
11 that is normally tried by summary court-martial, the person ordinarily should not be
12 ordered into confinement.
13 B.(1) When a person subject to this Chapter is ordered into arrest or
14 confinement before trial, immediate steps shall be taken:
15 (a) To inform the person of the specific offense of which the person is
16 accused.
17 (b) To try the person or to dismiss the charges and release the person.
18 (2) The procedures relating to referral for trial, including procedures for
19 prompt forwarding of the charges and specifications and, if applicable, the
20 preliminary hearing report submitted under Article 32 of this Code, shall be
21 determined through rules and regulations prescribed under Article 36 of this Code.
22 * * *
23 §115. Article 15. Commanding officer's nonjudicial punishment
24 * * *
25 D. The officer who imposes the punishment authorized in Subsection B, or
26 his successors in command, may, at any time, suspend probationally a reduction in
27 grade or a forfeiture imposed under Subsection B, whether or not executed. In
28 addition, he may, at any time, remit or mitigate any part or amount of the unexecuted
29 punishment and may set aside in whole or in part the punishment, whether executed
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1 or unexecuted, and restore all rights, privileges and property affected. He may also
2 mitigate reduction in grade to forfeiture of pay. When mitigating:
3 (1) arrest in quarters to restriction;
4 (2) confinement on bread and water or diminished rations to extra duties or
5 restriction, or both; or
6 (3)(2) extra duties to restriction; the mitigated punishment shall not be for
7 a greater period than the punishment mitigated. When mitigating reduction in grade
8 to forfeiture of pay, the amount of the forfeiture shall not be greater than the amount
9 that could have been imposed initially under this Section by the officer who imposed
10 the punishment mitigated.
11 * * *
12 §116. Article 16. Courts-martial classified
13 A. The three kinds of courts-martial in the state military forces are:
14 (1) general courts-martial, consisting of:
15 (a) a military judge and not less than six eight members, subject to Article
16 29 of this Code; or
17 (b) only a military judge, if before the court is assembled the accused,
18 knowing the identity of the military judge, and after consultation with defense
19 counsel, requests, orally on the record or in writing a court composed only of a
20 military judge and the military judge approves the request.
21 (2)(a) special courts-martial, consisting of a military judge and not less than
22 six members, subject to Article 25(E)(3) and Article 29 of this Code; or
23 (b) only a military judge, if before the court is assembled the accused,
24 knowing the identity of the military judge, and after consultation with defense
25 counsel, requests in writing a court composed only of a military judge and the
26 military judge approves. under either of the following methods:
27 (i) if the case is so referred by the convening authority, subject to Article
28 19(D) of this Code and such limitations as may be set forth in rules or regulations
29 prescribed under Article 36 of this Code.
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1 (ii) if the case is referred under Subparagraph (a) of this Paragraph and,
2 before the court is assembled the accused, knowing the identity of the military judge,
3 and after consultation with defense counsel, requests, orally on the record or in
4 writing, a court composed only of a military judge and the military judge approves
5 the request.
6 (3) summary courts-martial, consisting of one commissioned officer.
7 * * *
8 §118. Article 18. General courts-martial
9 A. In the National Guard not in federal service, general courts-martial may
10 be convened by the governor or the adjutant general. Subject to R.S. 29:117, general
11 courts-martial have jurisdiction to try persons subject to this Chapter for any offense
12 made punishable by this Chapter and may, under such limitations as the adjutant
13 general may prescribe, adjudge any punishment not forbidden by this Chapter.
14 B. In the National Guard not in federal service, general courts-martial may
15 be convened by the governor or the adjutant general.
16 B.C. A general court-martial may sentence to:
17 (1) A fine of not more than one thousand dollars.
18 (2) Forfeiture of pay and allowances.
19 (3) A reprimand.
20 (4) Dismissal, bad conduct bad-conduct discharge, or dishonorable
21 discharge.
22 (5) Reduction of a noncommissioned officer to the ranks.
23 (6) Confinement of not more than two years.
24 (7) Any combination of these punishments.
25 §119. Article 19. Special courts-martial
26 A. Subject to Article 17 of this Code, special courts-martial have jurisdiction
27 to try persons subject to this Code for any offense made punishable by this Code. A
28 special courts-martial may not try a commissioned officer.
29 A.B. In the national guard not in federal service, the commanding officer of
30 a garrison, fort, post, camp, air base, auxiliary air base, or other place where troops
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1 are on duty, or of a brigade, regiment, wing, group, detached battalion, separate
2 squadron, or other detached command, may convene special courts-martial. Special
3 courts-martial may also be convened by superior authority.
4 B. A special court-martial may not try a commissioned officer.
5 C. A special court-martial may sentence to:
6 (1) A fine of not more than two hundred dollars.
7 (2) Forfeiture of pay and allowances.
8 (3) A reprimand.
9 (4) Bad conduct Bad-conduct discharge or dishonorable discharge.
10 (5) Reduction of a noncommissioned officer to the ranks.
11 (6) Confinement of not more than twelve months.
12 (7) Any combination of these punishments.
13 D. If the charges and specifications are referred to a special court-martial
14 consisting of a military judge alone under R.S. 29:116(A)(2)(b):
15 (1) The military judge may not sentence an accused to a bad-conduct
16 discharge, nor confinement of more than six months, nor forfeiture of pay for more
17 than six months.
18 (2) With the consent of the parties, the military judge may appoint a military
19 magistrate to preside over the special court-martial.
20 §120. Article 20. Summary courts-martial
21 A. Subject to R.S. 29:117, summary courts-martial have jurisdiction to try
22 persons subject to this Chapter, except commissioned officers, warrant officers, and
23 cadets, for any offense made punishable by this Chapter. No person may be brought
24 to trial before summary court-martial if he objects thereto. If objection to trial by
25 summary court-martial is made by an accused, trial may be ordered by special or
26 general court-martial as may be appropriate.
27 A.B. In the national guard not in federal service, the commanding officer of
28 a garrison, fort, post, camp, air base, auxiliary air base, or other place where troops
29 are on duty, or of a brigade, regiment, wing, group, detached battalion, detached
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1 squadron, detached company or other detachment, may convene a summary court-
2 martial consisting of one commissioned officer. The proceedings shall be informal.
3 B. Summary courts-martial shall not have jurisdiction over officers.
4 * * *
5 §125. Article 25. Who may serve as members of courts-martial
6 * * *
7 C.(1) Any enlisted member of the state military forces who is not a member
8 of the same unit as the accused is eligible to serve on general and special courts-
9 martial for the trial of any enlisted member of the state military forces who may
10 lawfully be brought before such courts for trial, but he shall serve as a member of a
11 court only if, before the conclusion of a session called by the military judge under
12 Article 39(A) prior to trial or, in the absence of such a session, before the court is
13 assembled for the trial of the accused, the accused personally has requested in
14 writing that enlisted members serve on it. After such a request the accused may not
15 be tried by a general court-martial, the membership of which does not include
16 enlisted members in a number comprising at least one-third of the total membership
17 of the court, unless eligible members cannot be obtained on account of physical
18 conditions or military exigencies. If such members cannot be obtained, the court
19 may be assembled and the trial held without them, but the convening authority shall
20 make a detailed written statement, to be appended to the record, stating why they
21 could not be obtained. is eligible to serve on a general or special court-martial for the
22 trial of any other enlisted member.
23 (2) In this Section, the word "unit" means any regularly organized body of
24 the state military forces not larger than a company, a squadron, a division of the
25 naval militia, or a body corresponding to one of them. Before a court-martial with
26 a military judge and members is assembled for trial, an enlisted member who is
27 accused may personally request, orally on the record or in writing, that:
28 (a) the membership of the court-martial be comprised entirely of officers; or
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1 (b) enlisted members comprise at least one-third of the membership of the
2 court-martial, regardless of whether enlisted members have been detailed to the
3 court-martial.
4 (3) Except as provided in Paragraph (4) of this Subsection, after such a
5 request, the accused may not be tried by a general or special court-martial if the
6 membership of the court-martial is inconsistent with the request.
7 (4) If, because of physical conditions or military exigencies, a sufficient
8 number of eligible officers or enlisted members, as the case may be, are not available
9 to carry out Paragraph (2) of this Subsection, the trial may nevertheless be held. In
10 that event, the convening authority shall make a detailed written statement of the
11 reasons for nonavailability. The statement shall be appended to the record.
12 D. The accused in a court-martial with a military judge and members may,
13 after the findings are announced and before any matter is presented in the sentencing
14 phase, request, orally on the record or in writing, sentencing by the members.
15 D.E.(1) When it can be avoided, no person subject to this code may be tried
16 by a court-martial any member of which is junior to him in rank or grade.
17 (2) When convening a court-martial, the convening authority shall detail as
18 members thereof such members of the state military force as, in his opinion, are best
19 qualified for the duty by reason of age, education, training, experience, length of
20 service, and judicial temperament. No member of the state military force is eligible
21 to serve as a member of a general court-martial when he is the accuser or a witness
22 for the prosecution or has acted as investigating officer, preliminary hearing officer,
23 or as counsel in the same case.
24 (3) The convening authority shall detail not less than the number of members
25 necessary to impanel the court-martial under R.S. 29:129.
26 F. Before a court-martial is assembled for trial of a case, the convening
27 authority may excuse a member of the court from participating in the case. Under
28 such regulations as the adjutant general may prescribe, the convening authority may
29 delegate his authority under this Subsection to his state judge advocate or other
30 principal assistant.
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1 §126. Article 26. Military judge of a general or special court-martial
2 * * *
3 B. A military judge shall be a commissioned officer of a state military force
4 who is a member of the bar of the highest court of a state, or a member of the bar of
5 a federal court, and who is certified to be qualified, by reason of education, training,
6 experience, and judicial temperament, for such duty by a the state judge advocate.
7 C. The military judge of a general or special court-martial shall be
8 designated by the state judge advocate, or his designee, for detail by the convening
9 authority, and, unless the court-martial was convened by the governor neither the
10 convening authority nor any member of his staff shall prepare or review any report
11 concerning the effectiveness, fitness, or efficiency of the military judge so detailed,
12 which relates to his performance of duty as a military judge. (1) In accordance with
13 rules prescribed under Article 36 of this Code, a military judge of a general or special
14 court-martial shall be designated for detail by the state judge advocate.
15 (2) A commissioned officer who is certified to be qualified for duty as a
16 military judge of a general court-martial may perform duties of a judicial or
17 nonjudicial nature other than those relating to the officer's primary duty as a military
18 judge of a general court-martial when such duties are assigned to the officer by or
19 with the approval of the state judge advocate.
20 D. No person is eligible to act as a military judge in a case if he is the
21 accuser or a witness for the prosecution or has acted as investigating officer,
22 preliminary hearing officer, or as a counsel in the same case.
23 * * *
24 F. A military judge may be detailed under Subsection A of this Section to a
25 court-martial or a proceeding under R.S. 29:130a that is convened in a different
26 armed force or another state military force, when so permitted by the state judge
27 advocate.
28 §126a. Article 126a. Military magistrates
29 A. A military magistrate shall be a commissioned officer of the state military
30 forces who:
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1 (1) Is a member of the bar of a federal court or a member of the bar of the
2 highest court of a state; and
3 (2) Is certified to be qualified, by reason of education, training, experience,
4 and judicial temperament, for duty as a military magistrate by the state judge
5 advocate.
6 B. In accordance with the Federal Rules of Courts-Martial or regulations
7 prescribed by the governor or adjutant general, in addition to duties when designated
8 under R.S. 29:119 or 130a, a military magistrate may be assigned to perform other
9 duties of a nonjudicial nature.
10 §127. Article 27. Detail of trial counsel and defense counsel
11 A.(1) For each general and special court-martial the authority convening the
12 court shall detail trial counsel and defense counsel, and such assistants as he
13 considers appropriate. No person who has acted as investigating officer, military
14 judge, or court member in any case may act later as trial counsel, assistant trial
15 counsel, or, unless expressly requested by the accused, as defense counsel or
16 assistant defense counsel in the same case. No person who has acted for the
17 prosecution may act later in the same case for the defense, nor may any person who
18 has acted for the defense act later in the same case for the prosecution.
19 (2) No person who, with respect to a case, has served as a preliminary
20 hearing officer, court member, military judge, military magistrate, or appellate judge,
21 may later serve as trial counsel, assistant trial counsel, or, unless expressly requested
22 by the accused, as defense counsel or assistant or associate defense counsel in the
23 same case. No person who has acted for the prosecution may act later in the same
24 case for the defense, nor may any person who has acted for the defense act later in
25 the same case for the prosecution.
26 * * *
27 C. In the case of a special court-martial:
28 (1) the accused shall be afforded the opportunity to be represented at the trial
29 by counsel having the qualifications prescribed under Subsection B of this Section
30 unless counsel having such qualifications cannot be obtained on account of physical
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1 conditions or military exigencies. If counsel having such qualifications cannot be
2 obtained the court may be convened and the trial held by the convening authority
3 shall make a detailed written statement, to be appended to the record stating why
4 counsel with such qualifications could not be obtained; Defense counsel and
5 assistant defense counsel detailed for a special court-martial shall have the
6 qualifications set forth in Subsection B of this Section.
7 (2) if the trial counsel is qualified to act as counsel before a general court-
8 martial, the defense counsel detailed by the convening authority must be a person
9 similarly qualified; and Trial counsel and assistant defense counsel detailed for a
10 special court-martial and assistant trial counsel detailed for a general court-martial
11 must be determined to be competent to perform such duties by the state judge
12 advocate or the Judge Advocate General of the United States Army or United States
13 Air Force.
14 (3) if If the trial counsel is a member of the bar of the highest court of a state,
15 the defense counsel detailed by the convening authority must be one of the
16 foregoing.
17 §128. Article 28. Detail or employment of reporters and interpreters
18 Under such regulations as the governor may prescribe prescribed under
19 Article 36 of this Code, the convening authority of a general or special court-martial
20 or court of inquiry shall detail or employ qualified court reporters, who shall record
21 the proceedings of and testimony taken before that court. Under like regulations the
22 convening authority of a military court court-martial or court of inquiry may detail
23 or employ interpreters who shall interpret for the court.
24 §129. Article 29. Absent and additional members Assembly and impaneling of
25 members; detail of new members and military judges
26 A. No member of a general court-martial may be absent or excused after the
27 court has been assembled for the trial of the accused except for physical disability
28 or as the result of a challenge or by order of the convening authority for good cause.
29 The military judge shall announce the assembly of a general or special court-martial
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1 with members. After such a court-martial is assembled, no member may be absent,
2 unless the member is excused:
3 (1) As a result of a challenge.
4 (2) Under Subparagraph (B)(1)(b) of this Section.
5 (3) By order of the military judge or the convening authority for disability
6 or other good cause.
7 B. Whenever a general court-martial, other than a general court-martial
8 composed of a military judge only, is reduced below five members, the trial may not
9 proceed unless the convening authority details new members sufficient in number
10 to provide not less than five members. The trial may proceed with the new members
11 present after the recorded evidence previously introduced before the members of the
12 court has been read to the court in the presence of the military judge, the accused,
13 and counsel for both sides. (1) Under rules prescribed under Article 36 of this Code,
14 the military judge or a general or special court-martial with members shall:
15 (a) After determination of challenges, impanel the court-martial; and
16 (b) Excuse members who, having been assembled, are not impaneled.
17 (2) In a general court-martial, the military judge shall impanel eight
18 members.
19 (3) In a special court-martial, the military judge shall impanel six members.
20 C. If the military judge of a court-martial composed of a military judge only,
21 is unable to proceed with the trial because of physical disability, as a result of a
22 challenge, or for other good cause, the trial shall proceed, subject to any applicable
23 conditions of Article 16(1)(b) of the Louisiana Code of Military Justice after the
24 detail of a new military judge as if no evidence had previously been introduced
25 unless a verbatim record of the evidence previously introduced or a stipulation
26 thereof is read in court in the presence of the new military judge, the accused and
27 counsel for both sides. In addition to members under Subsection B of ths Section,
28 the military judge shall impanel alternate members, if the convening authority
29 authorizes alternate members.
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1 D.(1) If, after members are impaneled , the membership of the court-martial
2 is reduced to fewer than six members with respect to a general or special court-
3 martial, the trial may not proceed unless the convening authority details new
4 members and, from among the members so detailed, the military judge impanels new
5 members sufficient to provide the membership specified in this Section.
6 E. If the military judge is unable to proceed with the trial because of
7 disability or otherwise, a new military judge shall be detailed to the court-martial.
8 F.(1) In the case of new members under Subsection D of this Section, the
9 trial may proceed with the new members present after the evidence previously
10 introduced is read or, in the case of audiotape, videotape, or similar recording, is
11 played, in the presence of the new members, the military judge, and counsel for both
12 sides.
13 (2) In the case of a new military judge under Subsection E of this Section,
14 the trial shall proceed as if no evidence had been introduced, unless the evidence
15 previously introduced is read or, in the case of audiotape, videotape, or similar
16 recording, is played, in the presence of the new military judge, the accused, and
17 counsel for both sides.
18 §130. Article 30. Charges and specifications
19 A. Charges and specifications shall be signed by a person subject to this code
20 under oath before a person authorized by this code to administer oaths and shall
21 state:
22 (1) that the signer has personal knowledge of, or has investigated, the matters
23 set forth therein; and may be preferred only by a person subject to this Chapter; and
24 (2) that they are true in fact to the best of his knowledge and belief. shall be
25 preferred by presentment in writing, signed under oath before a commissioned
26 officer of the state military forces who is authorized to administer oaths.
27 B. Upon the preferring of charges, the proper authority shall take immediate
28 steps to determine what disposition should be made thereof in the interest of justice
29 and discipline, and the person accused shall be informed of the charges against him
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1 as soon as practicable. The writing under Subsection A of this Section shall state
2 that:
3 (1) The signer has personal knowledge of, or has investigated, that matter set
4 forth in the charges and specifications; and
5 (2) The matters set forth in the charges and specifications are true, to the best
6 of the knowledge and belief of the signer.
7 C. When charges and specifications are preferred under Subsection A of this
8 Section, the proper authority shall, as soon as practicable:
9 (1) Inform the person accused of the charges and specifications.
10 (2) Determine what disposition shall be made of the charges and
11 specifications in the interest of justice and discipline.
12 §130a. Article 130a. Certain proceedings conducted before referral
13 A.(1) Proceedings may be conducted to review, or otherwise act on the
14 following matters before referral of charges and specification to court-martial for
15 trial in accordance with rules or regulations prescribed under Article 36 of this Code.
16 (a) Pre-referral investigative subpoenas.
17 (b) Pre-referral warrants or orders for electronic communications.
18 (c) Pre-referral matters referred by an appellate court.
19 (2) If any matter in a proceeding under this Section becomes a subject at
20 issue with respect to charges that have been referred to a general or special court-
21 martial, the matter shall be transferred to the military judge detailed in the court-
22 martial.
23 B. Military judges may be detailed to proceedings under Paragraph (A)(1)
24 of this Section in accordance with regulations prescribed under Article 36 of this
25 Code. A Section, other than a proceeding described in Subparagraph (A)(1)(b) of
26 this Section, may designate a military magistrate to preside over the proceedings.
27 * * *
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1 §132. Article 32. Preliminary hearing required before referral to general court-
2 martial
3 A. Preliminary Hearing Required. (1) No charge or specification may be
4 referred to a general court-martial for trial until completion of a preliminary hearing,
5 unless such hearing is waived by the accused. (a) Except as provided in
6 Subparagraph (b) of this Paragraph, a preliminary hearing shall be held before
7 referral of charges and specifications for trial by general court-martial. The
8 preliminary hearing shall be conducted by an impartial hearing officer, detailed by
9 the convening authority in accordance with Subsection C of this Section.
10 (b) Under regulations prescribed under Article 36 of this Code, a preliminary
11 hearing need not be held if the accused submits a written waiver to the convening
12 authority and the convening authority determines a hearing is not required.
13 (2) The purpose of the preliminary hearing shall be limited to determining
14 the following:
15 (a) Whether or not the specification alleges an offense under this Chapter;
16 (a) determining whether there is probable cause to believe an offense has
17 been committed and the accused committed the offense; (b) Whether or not there is
18 probable cause to believe that the accused committed the offense charged;
19 (b) determining whether (c) Whether or not the convening authority has
20 court-martial jurisdiction over the offense and the accused;
21 (c) considering the form of the charges; and
22 (d) recommending A recommendation as to the disposition that should be
23 made of the case.
24 B. Hearing officer. (1) A preliminary hearing conducted pursuant to
25 Subsection A of under this Section shall be conducted by an impartial hearing
26 officer, who: judge advocate certified under Article 27(B) of this code whenever
27 practicable or, in exceptional circumstances in which the interests of justice warrant,
28 by an impartial hearing officer who is not a judge advocate. If the hearing officer is
29 not a judge advocate, a judge advocate certified under Article 27(B) shall be
30 available to provide legal advice to the hearing officer.
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1 (a) Whenever practicable, shall be a judge advocate who is certified under
2 Article 27(B) of this Code; or
3 (b) When is it not practicable to appoint a judge advocate because of
4 exceptional circumstances, the convening authority may detail an impartial
5 commissioned officer, who is not the accuser, as a preliminary hearing officer.
6 (2) In the case of a hearing officer under Paragraph (1) of this Subsection,
7 a judge advocate who is certified under Article 27(B) of this Code shall be available
8 to provide legal advice to the hearing officer.
9 (2)(3) Whenever practicable, the judge advocate or other hearing officer
10 detailed to conduct a preliminary hearing shall be equal to in grade or senior in grade
11 to the military counsel detailed to represent the accused or the government at a the
12 preliminary hearing.
13 C. Report of results to convening authority. At the conclusion of a
14 preliminary hearing conducted pursuant to Subsection A of this Section, the judge
15 advocate or other hearing officer that conducted the preliminary hearing shall
16 prepare a submit to the convening authority a written report, accompanied by a
17 recording of the preliminary hearing under Subsection E of this Section, that
18 addresses the matters specified in Paragraph (A)(2) and Subsection F of this Section.
19 includes the following:
20 (1) For each specification, a statement of the reasoning and conclusion of the
21 hearing officer with respect to determinations under Paragraph (A)(2) of this Section,
22 including a summary of relevant witness testimony and documentary evidence
23 presented at this hearing and any observations of the hearing officer concerning the
24 testimony of witnesses and the availability and admissibility of evidence at trial.
25 (2) Recommendations for any necessary modifications to the form of the
26 charges and specifications.
27 (3) An analysis of any additional information submitted after the hearing by
28 the parties or by a victim of an offense, that, under such rules prescribed under
29 Article 36 of this Code, is relevant to disposition under R.S. 29:130 and 134.
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1 (4) A statement of action taken on evidence adduced with respect to
2 uncharged offenses, as described in Subsection F of this Section.
3 D. Rights of accused and victim. (1) The accused shall be advised of the
4 charges against him and of his right to be represented by counsel at a preliminary
5 hearing conducted pursuant to Subsection A of this Section Article. The accused has
6 the right to be represented at the preliminary hearing as provided in Article 38 of this
7 Code and in regulations prescribed under that Article.
8 (2) The accused may cross-examine witnesses who testify at the preliminary
9 hearing and present additional evidence in defense and mitigation, relevant to the
10 limited purposes of the hearing, as provided for in Paragraph (4) of this Subsection
11 and Paragraph (A)(2) of this Section that is relevant to the issues for determination
12 under Paragraph (A)(2) of this Article.
13 (3) A victim may not be required to testify at a preliminary hearing. A
14 victim who declines to testify shall be deemed to be not available for purposes of a
15 preliminary hearing. A declination under this Paragraph shall not serve as the sole
16 basis for ordering a deposition under Article 49 of this Code.
17 (4) The presentation of evidence and examination, including
18 cross-examination, of witnesses at a preliminary hearing shall be limited to the
19 matters relevant to the limited purpose of the hearing, as provided in determinations
20 under Paragraph (A)(2) of this Section Article.
21 E. Recording of preliminary hearing. A preliminary hearing under
22 Subsection A of this Section shall be recorded by a suitable recording device. The
23 victim may request the recording and shall have access to the recording as prescribed
24 by the Manual for Courts-Martial under such rules prescribed under Article 36 of this
25 Code.
26 * * *
27 G. Effect of violation. The requirements of this Section are binding on all
28 persons administering this Chapter, but failure to follow the requirement does not
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1 constitute jurisdictional error. A defect in a report under Subsection C of this Article
2 is not a basis for relief if the report is in substantial compliance with that Subsection.
3 * * *
4 §134. Article 34. Advice of state judge advocate and reference to convening
5 authority before referral for trial
6 A. Before directing the trial of any charge by general court-martial, the
7 convening authority shall refer it to the state judge advocate for consideration and
8 advice. The convening authority may not refer a charge to a general court-martial
9 for trial unless he has found that the charge alleges an offense under this code and
10 is warranted by evidence indicated in the report of the investigation. General court-
11 martial. (1) Before referral of charges and specifications to a general court-martial
12 for trial, the convening authority shall submit the matter to the state judge advocate
13 for advice, which the state judge advocate shall provide to the convening authority
14 in writing. The convening authority may not refer a specification under a charge to
15 a general court-martial unless the state judge advocate advises the convening
16 authority in writing that:
17 (a) The specification alleges an offense under this Code;
18 (b) There is probable cause to believe that the accused committed the offense
19 charged; and
20 (c) A court-martial would have jurisdiction over the accused and the offense.
21 (2) Together with the written advice provided under Paragraph (1) of this
22 Subsection, the state judge advocate shall provide a written recommendation to the
23 convening authority as to the disposition that should be made of this specification in
24 the interest of justice and discipline.
25 (3) When a convening authority makes a referral for trial by general court-
26 martial, the written advice of the state judge advocate under Paragraph (1) of this
27 Subsection and the written recommendation of the state judge advocate under
28 Paragraph (2) of this Subsection with respect to each specification shall accompany
29 the referral.
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1 B. If the charges or specifications are not formally correct or do not conform
2 to the substance of the evidence contained in the report of the investigating officer,
3 formal corrections, and such changes in the charges and specifications as are needed
4 to make them conform to the evidence may be made. Special court-martial. Before
5 referral of charges and specifications to a special court-martial for trial, the
6 convening authority shall consult a judge advocate on relevant legal issues.
7 C. Before referral for trial by general court-martial or special court-martial,
8 changes may be made to charges and specifications:
9 (1) To correct errors in form; and
10 (2) When applicable, to conform to the substance of the evidence contained
11 in a report under Subsection C of Article 32 of this Code.
12 D. In this Article, the term "referral" means the order of a convening
13 authority that charges and specifications against an accused be tried by a specified
14 court-martial.
15 §135. Article 35. Service of charges; continuance commencement of trial
16 A. The trial counsel to whom court-martial charges are referred for trial
17 detailed for a court-martial under Article 27 of this Code shall cause to be served
18 upon the accused a copy of the charges upon which trial is to be had and
19 specifications referred for trial. Upon a showing of good cause, the military judge
20 in a general or special court-martial may grant a continuance of any hearing in which
21 the presence of the accused is required.
22 B.(1) Subject to Paragraphs (2) and (3) of this Subsection, no trial or other
23 proceeding of a general court-martial or a special court-martial, including any
24 session under Article 39(A) of this Code may be held over the objection of the
25 accused:
26 (a) With respect to a general court-martial, from the time of service through
27 the fifth day after the date of service; or
28 (b) With respect to a special court-martial, from the time of service through
29 the third day after date of service.
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1 (2) An objection under Paragraph (1) of this Subsection may be raised only
2 at the first session of the trial or other proceeding and only if the first session occurs
3 before the end of the applicable period under Subparagraphs (1)(a) or (b) of this
4 Subsection. If the first session occurs before the end of the applicable period, the
5 military judge shall, at that session, inquire as to whether the defense objects under
6 this Subsection.
7 C. Upon a showing of good cause, the military judge in a general or special
8 court-martial may grant a continuance of any hearing in which the presence of the
9 accused is required.
10 * * *
11 §138. Article 38. Duties of trial counsel and defense counsel
12 A. The trial counsel of a general or special court-martial shall prosecute in
13 the name of the state, and shall, under the direction of the court, prepare the record
14 of the proceedings.
15 B.(1) The accused has the right to be represented in his defense before a
16 general or special court-martial by civilian counsel if provided by him at his own
17 expense, or by military counsel of his own selection if reasonably available, or by the
18 defense counsel detailed under Article 27 of this code. Should the accused have
19 counsel of his own selection, the defense counsel, and assistant defense counsel, if
20 any, who were detailed, shall, if the accused so desires, act as his associate counsel;
21 otherwise they shall be excused by the military judge or by the president of a court-
22 martial without a military judge. or at a preliminary hearing under Article 32 of this
23 Code as provided in this Subsection.
24 (2) The accused may be represented by civilian counsel if provided by him.
25 (3) The accused may be represented:
26 (a) By military counsel detailed under Article 27 of this Code; or
27 (b) By military counsel of his own selection if that counsel is reasonably
28 available, as determined under regulations and rules of procedure prescribed under
29 Article 36 of this Code.
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1 (4) If the accused is represented by civilian counsel, the military counsel
2 detailed or selected under Paragraph (3) of this Subsection shall act as associate
3 counsel unless excused at the request of the accused.
4 (5) Except as provided under Paragraph (6) of this Subsection, if the accused
5 is represented by military counsel of his own selection under Subparagraph (3)(b) of
6 this Section, any military counsel detailed under Subparagraph (3)(a) of this Section
7 shall be excused.
8 (6) The accused is not entitled to be represented by more than one military
9 counsel. However, the person authorized under regulations prescribed under Article
10 27 of this Code to detail counsel, in his sole discretion:
11 (a) May detail additional military counsel as assistant defense counsel; and
12 (b) If the accused is represented by military counsel of his own selection
13 under Subparagraph (3)(b) of this Section, may approve a request from the accused
14 that military counsel detailed under Subparagraph (3)(a) of this Section act as
15 associate defense counsel.
16 C. In every any court-martial proceeding resulting in a conviction, the
17 defense counsel may:, in the event of conviction,
18 (1) forward for attachment to the record of proceedings a brief of such
19 matters he feels determines should be considered in behalf of the accused on review,
20 including any objection to the contents of the record which he considers appropriate.
21 (2) take other action authorized by this Code.
22 D. An assistant trial counsel of a general court-martial may, under the
23 direction of the trial counsel or when he is qualified to be a trial counsel as required
24 by R.S. 29:127 Article 27 of this Code, perform any duty imposed by law,
25 regulation, or the custom of the service upon the trial counsel of the court. An
26 assistant trial counsel of a special court-martial may perform any duty of the trial
27 counsel.
28 E. An assistant defense counsel of a general or special court-martial may,
29 under the direction of the defense counsel or when he is qualified to be the defense
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1 counsel as required by R.S. 29:127, perform any duty imposed by law, regulation,
2 or the custom of the service upon counsel for the accused.
3 §139. Article 39. Sessions
4 A. At any time after the service of charges which have been referred for trial
5 to a court-martial composed of a military judge and members, the military judge
6 may, subject to R.S. 29:135 Article 35 of this Code, call the court into session
7 without the presence of the members for the purpose of:
8 (1) hearing and determining motions raising defenses or objections which
9 are capable of determination without trial of the issues raised by a plea of not guilty;
10 (2) hearing and ruling upon any matter which may be ruled upon by the
11 military judge under this code, whether or not the matter is appropriate for later
12 consideration or decision by the members of the court;
13 (3) if permitted by regulations of the governor, holding the arraignment and
14 receiving the pleas of the accused; and
15 (4) conducting a sentencing proceeding and sentencing the accused; and
16 (4)(5) performing any other procedural function which may be performed
17 by the military judge under this code or under rules prescribed pursuant to R.S.
18 29:136 Article 36 and which does not require the presence of the members of the
19 court.
20 B. These proceedings Proceedings under Subsection A of this Section shall
21 be conducted in the presence of the accused, the defense counsel, and the trial
22 counsel and shall be made a part of the record. These proceedings may be conducted
23 notwithstanding the number of members of the court and without regard to Article
24 29 of this Code. If authorized by procedures and regulations specified in Article 36
25 of this Code, and if at least one defense counsel is physically in the presence of the
26 accused, the presence required by this Subsection may otherwise be established by
27 audiovisual technology, such as video teleconferencing technology.
28 B.C. When the members of a court-martial deliberate or vote, only the
29 members may be present. All other proceedings, including any other consultation
30 of the members of the court with counsel or the military judge, shall be made a part
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1 of the record and shall be in the presence of the accused, the defense counsel, the
2 trial counsel, and in cases in which a military judge has been detailed to the court,
3 the military judge.
4 §140. Article 40. Continuances
5 The military judge or a summary court-martial without a military judge may,
6 for reasonable cause, grant a continuance to any party for such time, and as often, as
7 may appear to be just.
8 §141. Article 41. Challenges
9 A.(1) The military judge and the members of a general court-martial may be
10 challenged by the accused or the trial counsel for cause stated to the court. The
11 military judge or, if none, the court shall determine the relevancy and validity of
12 challenges for cause, and may not receive a challenge to more than one person at a
13 time. Challenges by the trial counsel shall ordinarily be presented and decided
14 before those by the accused are offered.
15 (2) If exercise of a challenge for cause reduces the court below the number
16 of members required by Article 16 of this Code, all parties shall, notwithstanding
17 Article 29 of this Code, either exercise or waive any challenge for cause then
18 apparent against the remaining members of the court before additional members are
19 detailed to the court. However, peremptory challenges shall not be exercised at that
20 time.
21 B.(1) Each accused and the trial counsel is are entitled initially to one
22 peremptory challenge of members of the court. , but the The military judge may not
23 be challenged except for cause.
24 (2) If exercise of a peremptory challenge reduces the court below the number
25 of members required by Article 16 of this Code, the parties shall, notwithstanding
26 Article 29 of this Code, either exercise or waive any remaining peremptory
27 challenge, not previously waived, against the remaining members of the court before
28 additional members are detailed to the court.
29 C. Whenever additional members are detailed to the court, and after any
30 challenges for cause against such additional members are presented and decided,
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1 each accused and the trial counsel are entitled to one peremptory challenge against
2 members not previously subject to peremptory challenge.
3 §142. Article 42. Oaths
4 A. Before performing their respective duties, military judges, members of
5 a general and special court-martial, trial counsel, assistant trial counsel, defense
6 counsel, assistant defense counsel, reporters and interpreters shall take an oath to
7 perform their duties faithfully. The form of the oath, the time and place of the taking
8 thereof, the manner of recording the same, and whether the oath shall be taken for
9 all cases in which these duties are to be performed or for a particular case, shall be
10 as prescribed in procedures and regulations of the governor prescribed in Article 36
11 of this Code. These regulations may provide that an oath to perform faithfully duties
12 as a military judge, trial counsel, assistant trial counsel, defense counsel or assistant
13 defense counsel may be taken at any time by any judge advocate or legal officer, or
14 other person certified to be qualified or competent for the duty, and if such an oath
15 is taken it need not again be taken at the time the judge advocate or legal officer
16 other person is detailed to that duty.
17 B. Each witness before a court-martial shall be examined on oath.
18 §143. Article 43. Statute of limitations
19 A. A person charged with desertion, missing movement, or absence without
20 leave in time of war, or with aiding the enemy or with mutiny may be tried and
21 punished at any time without limitation.
22 B. Except as otherwise provided in this Article, a person charged with
23 desertion in time of peace or with the offense punishable under R.S. 29:231 and
24 29:232 Article 131 or Article 132 is not liable to be tried by court-martial if the
25 offense was committed more than three five years before the receipt of sworn
26 charges and specifications by an officer exercising summary court-martial
27 jurisdiction over the command.
28 C. Except as otherwise provided in this Section, a person charged with any
29 offense is not liable to be tried by court-martial or punished under R.S. 29:115 if the
30 offense was committed more than two years before the receipt of sworn charges and
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1 specifications by an officer exercising summary court-martial jurisdiction over the
2 command or before the imposition of punishment under R.S. 29:115.
3 D.(1) Periods in which the accused is absent without authority or fleeing
4 from justice shall be excluded in computing the period of limitation prescribed in this
5 Article.
6 (2) Periods in which the accused was absent from Louisiana or in the hands
7 of the enemy shall be excluded in computing the period of limitation prescribed in
8 this Article.
9 E.(1) If charges or specifications are dismissed as defective or insufficient
10 for any cause and the period prescribed by the applicable statute of limitations has
11 expired or will expire within one hundred eighty days after date of dismissal of the
12 charges and specifications, trial and punishment under new charges and
13 specifications are not banned by the statute of limitations if the conditions in
14 Paragraph (2) of this Subsection are met.
15 (2) In order to move forward with new charges and specifications after
16 dismissal as described in Paragraph (1) of this Subsection, the new charges and
17 specifications must:
18 (a) Be received by an officer exercising summary court-martial jurisdiction
19 over the offenses within one hundred eighty days after dismissal of the charges and
20 specifications; and
21 (b) Allege the same acts or omissions that were alleged in the dismissed
22 charges or specifications, or alleged acts or omissions that were included in the
23 dismissed charges or specifications.
24 F. A person charged with fraudulent enlistment or fraudulent appointment
25 under Article 83 may be tried by court-martial if the sworn charges and
26 specifications are received by an officer exercising summary court-martial
27 jurisdiction with respect to that person as follows:
28 (1) In the case of an enlisted member, during the period of the enlistment or
29 five years, whichever provides a longer period.
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1 (2) In the case of an officer, during the period of the appointment or five
2 years, whichever provides a longer period.
3 G. If DNA testing implicates an identified person in the commission of an
4 offense punishable by confinement for more than one year, no statute of limitations
5 that would otherwise preclude prosecution of the offense shall preclude such
6 prosecution until a period of time following the implication of the person by DNA
7 testing has elapsed that is equal to the otherwise applicable limitation period.
8 * * *
9 §145. Article 45. Pleas of the accused
10 * * *
11 B. With respect to any charge or specification to which a plea of guilty has
12 been made by the accused and accepted by the military judge, or by a court-martial
13 without a military judge, a finding of guilty of the charge or specification may, if
14 permitted by regulations of the governor, be entered immediately without vote. This
15 finding shall constitute the finding of the court unless the plea of guilty is withdrawn
16 prior to the announcement of the sentence, in which event the proceedings shall
17 continue as though the accused had pleaded not guilty.
18 C. A variance from the requirements of this Article is harmless error if the
19 variance does not materially prejudice the substantial rights of the accused.
20 §146. Article 46. Opportunity to obtain witnesses and other evidence in trial by
21 court-martial
22 A. In a case referred for trial by court-martial, the The trial counsel, the
23 defense counsel, and the court-martial shall have equal opportunity to obtain
24 witnesses and other evidence in accordance with such regulations as the governor
25 may prescribe. prescribed in accordance of Article 36 of this Code.
26 B. Process issued in court-martial cases to compel witnesses to appear and
27 testify and to compel the production of other evidence shall be similar to that which
28 civil courts of this state having criminal jurisdiction may lawfully issue and shall run
29 to any part of the state and may be executed by civil officers of this state.
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1 C. A subpoena or other process may be issued to compel a witness to appear
2 and testify:
3 (1) Before a court-martial or court of inquiry;
4 (2) At a deposition under Article 49 of this Code; or
5 (3) As otherwise authorized under this Code.
6 D.(1) A subpoena or other process may be issued to compel the production
7 of evidence:
8 (a) For a court-martial or court of inquiry;
9 (b) For a deposition under Article 49 of this Code;
10 (c) For an investigation of an offense under this Code; or
11 (d) As otherwise authorized under this Code.
12 (2) An investigative subpoena under Subparagraph (1)(c) of this Subsection
13 may be issued before referral of charges to a court-martial only if a general court-
14 martial convening authority has authorized counsel for the government to issue such
15 a subpoena or a military judge issues such a subpoena pursuant to Article 30a of this
16 Code.
17 (3) With respect to an investigation of an offense under this Code, a military
18 judge detailed in accordance with Article 26 or 30a of this Code, may issue warrants
19 or court orders for the contents of, and records concerning, wire or electronic
20 communications in the same manner as such warrants and orders may be issued by
21 a district court of this state, subject to rules prescribed under Article 36 of this Code.
22 E. If a person requests relief from a subpoena or other process under this
23 Article on grounds that compliance is unreasonable or oppressive or is prohibited by
24 law, a military judge detailed in accordance with Article 26 or 30a of this Code shall
25 review the request and shall:
26 (1) Order that the subpoena or other process be modified or withdrawn, as
27 appropriate; or
28 (2) Order the person to comply with the subpoena or other process.
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1 §147. Article 47. Refusal to appear or testify
2 A.(1) Any person not subject to this code described in Paragraph (2) of this
3 Subsection who:
4 (1)(a) has Has been duly subpoenaed to appear as a witness or to produce
5 books and records before a military court or before any military or civil officer
6 designated to take a deposition to be read in evidence before such a court;
7 (2)(b) has Has been duly paid or tendered the fees and mileage of a witness
8 at the rates allowed to witnesses attending the courts of the state; and
9 (3)(c) willfully Willfully neglects or refuses to appear, or refuses to qualify
10 as a witness or to testify or to produce any evidence which that person may have
11 been legally subpoenaed to produce;
12 (d) Is is guilty of an offense against the state.
13 (2) For purposes of this Section, "person" shall mean the following:
14 (a) Any person not subject to this Chapter who:
15 (i) Is issued a subpoena or other process described in Subsection C of Article
16 46 of this Code; and
17 (ii) Is provided a means for reimbursement from the government for fees and
18 mileage at the rate allowed to witnesses attending the district courts of this state or,
19 in the case of extraordinary hardship, is advanced such fees and mileage.
20 (b) Any person not subject to this Code who is issued a subpoena or other
21 process described in Subsection D of Article 46 of this Code.
22 * * *
23 §149. Article 49. Depositions
24 A. At any time after charges have been signed, as provided in R.S. 29:130,
25 any party may take oral or written depositions unless the military judge or court-
26 martial without a military judge hearing the case, or if the case is not being heard,
27 an authority competent to convene a court-martial for the trial of those charges
28 forbids it for good cause. If a deposition is to be taken before charges are referred
29 for trial, such an authority may designate commissioned officers to represent the
30 prosecution and the defense and may authorize those officers to take the deposition
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1 of any witness. (1) A convening authority or a military judge may order depositions
2 at the request of any party. A deposition may be ordered only if the requesting party
3 demonstrates that, due to exceptional circumstances, it is in the best interest of
4 justice that the testimony of a prospective witness be preserved for use at a court-
5 martial, court of inquiry, or other military court or board.
6 (2) A party who requests a deposition under this Article shall give to every
7 other party reasonable notice of the time and place for the deposition. A deposition
8 under this Article shall be taken before, and authenticated by, an impartial officer,
9 as follows:
10 (a) Whenever practicable, by an impartial judge advocate certified under
11 Article 27(B) of this Code.
12 (b) In exceptional circumstances, by an impartial military or civil officer
13 authorized to administer oaths by the laws of the United States or the state of
14 Louisiana.
15 B. The party at whose instance a deposition is to be taken shall give to every
16 other party reasonable written notice of the time and place for taking the deposition.
17 Representation of the parties with respect to a deposition shall be by counsel detailed
18 in the same manner as trial counsel and defense counsel are detailed under Article
19 27 of this Code. In addition, the accused shall have the right to be represented by
20 civilian or military counsel in the same manner as such counsel are provided for in
21 Article 38(B) of this Code.
22 C. Depositions may be taken before and authenticated by any military or
23 civil officer authorized by the laws of this state or by the laws of the place where the
24 deposition is taken to administer oaths. A deposition order under Subsection A of
25 this Article does not control the admissibility of the deposition in the court-martial
26 or other proceeding under this Code.
27 D. A duly authenticated deposition taken upon reasonable notice to the other
28 parties, so far as otherwise admissible under the rules of evidence, may be read in
29 evidence before any court-martial or in any proceeding before a court of inquiry, if
30 it appears:
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1 (1) that the witness is a nonresident, or resides beyond the distance of one
2 hundred miles from the place of trial or hearing;
3 (2) that the witness by reason of death, age, sickness, bodily infirmity,
4 imprisonment, military necessity, nonamenability to process, or other reasonable
5 cause, is unable or refuses to appear and testify in person at the place of trial or
6 hearing; or
7 (3) that the present whereabouts of the witness is unknown.
8 §150. Article 50. Admissibility of sworn testimony from records of courts of
9 inquiry
10 A. In any case not extending to the dismissal of a commissioned officer, the
11 sworn testimony, contained in the duly authenticated record of proceedings of a court
12 of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise
13 admissible under the rules of evidence mandated by Article 36 of this Code, be read
14 in evidence by any party before a court-martial if the accused was a party before the
15 court of inquiry and if the same issue was involved or if the accused consents to the
16 introduction of such evidence.
17 B. Such testimony may be read in evidence only by the defense in cases
18 extending to the dismissal of a commissioned officer.
19 C. Such testimony may also be read in evidence before a court of inquiry or
20 a military board.
21 D. Sworn testimony that:
22 (1) Is recorded by audiotape, videotape, or similar method; and
23 (2) Is contained in the duly authenticated record of proceedings of a court of
24 inquiry; and
25 (3) Is admissible before a court-martial, court of inquiry, or military board,
26 to the same extent as sworn testimony may be read in evidence before any such body
27 under Subsections A, B, or C of this Article.
28 * * *
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1 §153. Article 53. Court to announce action Findings and sentencing
2 A court-martial shall announce its findings and sentence to the parties as soon
3 as determined. A. Announcement. A court-martial shall announce its findings and
4 sentence to the parties as soon as determined.
5 B. Sentencing Generally.
6 (1) General and Special Court-Martial
7 (a) Sentencing by Military Judge. Except as provided in Subparagraph (b)
8 of this Paragraph, if the accused is convicted of an offense in a trial, the military
9 judge shall sentence the accused.
10 (b) Sentencing by Members. If the accused is convicted of an offense by
11 general or special court-martial consisting of a military judge and members and the
12 accused elects sentencing by members under Article 25 of this Code, the members
13 shall sentence the accused.
14 (c) Sentence of the Accused. The sentence determined pursuant to this
15 Paragraph constitutes the sentence of the accused.
16 (2) Summary Courts-Martial. If the accused is convicted of an offense in a
17 trial by summary court-martial, the court-martial shall sentence the accused.
18 §153a. Article 53a. Plea agreements
19 A.(1) At any time before the announcement of findings under Article 53 of
20 this Code, the convening authority and the accused may enter into a plea agreement
21 with respect to such matters as:
22 (a) The manner in which the convening authority will depose of one or more
23 charges and specifications; and
24 (b) Limitations on the sentence that may be adjudged for one or more
25 charges and specifications.
26 (2) The military judge of a general or special court-martial may not
27 participate in discussions between the parties concerning prospective terms and
28 conditions of a plea agreement.
29 B. The military judge of a general or special court-martial shall reject a plea
30 agreement that:
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1 (1) Contains a provision that has not been accepted by both parties;
2 (2) Contains a provision that is not understood by the accused;
3 (3) Is prohibited by law; or
4 (4) Is contrary to, or is inconsistent with, rules promulgated by Article 36 of
5 this Code with respect to terms, conditions, or other aspects of plea agreements.
6 C. Upon acceptance by the military judge of a general or special court-
7 martial, a plea agreement shall bind the parties and the court-martial.
8 §154. Article 54. Record of trial
9 A. Each general or special court-martial shall keep a separate record of the
10 proceedings in each case brought before it. , and the record shall be authenticated by
11 the signature of the military judge. If the record cannot be authenticated by the
12 military judge by reason of his death, disability or absence, it shall be authenticated
13 by the signature of the trial counsel or by that of a member if the trial counsel is
14 unable to authenticate it by reason of his death, disability, or absence. In a court-
15 martial consisting of only a military judge the record shall be authenticated by the
16 court reporter under the same conditions which would impose such a duty on a
17 member under this Subparagraph. If the proceedings have resulted in an acquittal
18 of all charges and specifications or, if not affecting a general or flag officer, in a
19 sentence not including discharge or confinement and not in excess of that which may
20 otherwise be adjudged by a special court-martial, the record shall contain such
21 matters as may be prescribed by regulations of the governor. The record shall be
22 certified by a court reporter, except that in the case of death, disability, or absence
23 of the court reporter, the record shall be certified by an official selected under rules
24 prescribed under Article 36 of this Code.
25 B. Each special and summary court-martial shall keep a separate record of
26 the proceedings in each case, and the record shall contain the matter and shall be
27 authenticated certified in the manner required by rules prescribed under Article 36
28 of this Code. such regulations as the governor may prescribe.
29 C.(1) Except as provided in Paragraph (2) of this Subsection, the record shall
30 contain such matters as required by rules prescribed under Article 36 of this Code.
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1 (2) In accordance with rules prescribed under Article 36 of this Code, a
2 complete record or proceedings and testimony shall be prepared in any case of a
3 sentence of dismissal, discharge, confinement for more than six months, or forfeiture
4 of pay for more than six months.
5 C.D. A copy of the record of the proceedings of each general and special
6 court-martial shall be given to the accused as soon as it is authenticated certified.
7 E. In the case of a general or special court-martial, upon request, a copy of
8 all prepared records of the proceedings of the court-martial shall be given to the
9 victim of the offense if the victim testified during the proceedings. The records of
10 the proceedings shall be provided without charge and as soon as the records are
11 certified. The victim shall be notified of the opportunity to receive the records of the
12 proceedings.
SPEAKER OF THE HOUSE OF REPRESENTATIVES
PRESIDENT OF THE SENATE
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED:
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