CHAPTER 507
CONNECTICUT CODE OF MILITARY JUSTICE

      Sec. 27-141. Definitions. In this chapter, unless the context otherwise requires:

      (1) "State military forces" means the National Guard of the state, as defined in Section 101(3) of Title 32, United States Code, the organized naval militia of the state, and any other military force organized under the laws of the state and shall include the organized militia as defined in section 27-2;

      (2) "Officer" means commissioned or warrant officer;

      (3) "Commissioned officer" includes a commissioned warrant officer;

      (4) "Commanding officer" includes only commissioned officers;

      (5) "Superior commissioned officer" means a commissioned officer superior in rank and command;

      (6) "Enlisted member" means a person in an enlisted grade;

      (7) "Grade" means a step or degree, in a graduated scale of office or military rank, that is established and designated as a grade by law or regulation;

      (8) "Rank" means the order of precedence among members of the state military forces;

      (9) "Active state duty" means full-time duty in the active military service of the state under an order of the Governor issued under authority vested in him by law, and includes travel to and from such duty;

      (10) "Duty status" means any one of the types of required duty wherein the person is performing military service under competent authority other than set forth in subdivision (9) of this section and includes travel to and from such duty;

      (11) "Military court" means a court-martial, a court inquiry, or a provost court;

      (12) "Military judge" means an official of a general or special court-martial appointed in accordance with section 27-167;

      (13) "Law specialist" means a commissioned officer of the organized naval militia of the state designated for special law duty;

      (14) "Legal officer" means any commissioned officer of the organized militia of the state designated to perform legal duties for a command;

      (15) "State Judge Advocate" means the commissioned officer responsible for supervising the administration of the military justice in the state military forces;

      (16) "Accuser" means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any person who has an interest other than an official interest in the prosecution of the accused;

      (17) "Military" refers to any or all of the armed forces;

      (18) "Convening authority" includes, in addition to the person who convened the court, a commissioned officer commanding for the time being, or a successor in command;

      (19) "Code" means this chapter.

      (1967, P.A. 717, S. 1; P.A. 77-295, S. 10.)

      History: P.A. 77-295 substituted in Subdiv. (12) "military judge" for "law officer" and "appointed" for "detailed" and added application to special court-martial.

      Sec. 27-142. Applicability of chapter. This code applies to all members of the state military forces who are not in federal service.

      (1967, P.A. 717, S. 2.)

      Sec. 27-143. Dismissal of commissioned officer. (a) If any commissioned officer, dismissed by order of the Governor, makes a written application for trial by court-martial, setting forth, under oath, that he has been wrongfully dismissed, the Governor, as soon as practicable, shall convene a general court-martial to try that officer on the charges on which he was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and he shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which he is charged. The court-martial may, as part of its sentence, adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, does not include dismissal, the Adjutant General shall substitute for the dismissal ordered by the Governor a form of discharge authorized for administrative issue.

      (b) If the Governor fails to convene a general court-martial within six months from the presentation of an application for trial under this code, the Adjutant General shall substitute for the dismissal ordered by the Governor a form of discharge authorized for administrative issue.

      (c) If a discharge is substituted for a dismissal under this code, the Governor alone may reappoint the officer to such commissioned grade and with such rank as, in the opinion of the Governor, that former officer would have attained had he not been dismissed. The reappointment of such a former officer may be made only if a vacancy is available under applicable tables of organization. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.

      (d) If an officer is discharged from the organized militia by administrative action or by board proceedings under law, or is dropped from the rolls by order of the Governor, he has no right to trial under this section.

      (1967, P.A. 717, S. 3; P.A. 89-221, S. 1.)

      History: P.A. 89-221 amended Subsec. (c) to add "including the right to pay and allowances".

      Sec. 27-144. Applicability of code in and out of state. (a) This code applies throughout the state. It also applies to all persons otherwise subject to this code while they are serving outside the state, and while they are going to and returning from such service outside the state, in the same manner and to the same extent as if they were serving inside the state.

      (b) Courts-martial and courts of inquiry may be convened and held in units of the state military forces while those units are serving outside the state with the same jurisdiction and powers as to persons subject to this code as if the proceedings were held inside the state, and offenses committed outside the state may be tried and punished either inside or outside the state.

      (1967, P.A. 717, S. 4.)

      Sec. 27-145. Judge advocates and legal officers. (a) The Governor, on the recommendation of the Adjutant General, shall appoint an officer of the state military forces as State Judge Advocate. To be eligible for appointment, an officer must be a member of the bar of the highest court of the state and must have been a member of the bar of the state for at least five years.

      (b) The Adjutant General may appoint as many assistant state judge advocates as he considers necessary. To be eligible for appointment, assistant state judge advocates must be officers of the state military forces and members of the bar of the highest court of the state.

      (c) The State Judge Advocate or his assistants shall make frequent inspections in the field in supervision of the administration of military justice.

      (d) Convening authorities shall at all times communicate directly with their staff judge advocates or legal officer in matters relating to the administration of military justice; and the staff judge advocate or legal officer of any command is entitled to communicate directly with the staff judge advocate or legal officer of a superior or subordinate command, or with the State Judge Advocate.

      (e) No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer, or who has been a witness for either the prosecution or defense, in any case may later act as staff judge advocate or legal officer to any reviewing authority upon the same case.

      (1967, P.A. 717, S. 5; P.A. 89-221, S. 2.)

      History: P.A. 89-221 amended Subsec. (d) to require convening authorities to communicate "directly" with their staff judge advocates or legal officer and amended Subsec. (e) to replace "law officer" with "military judge".

      Sec. 27-146. Apprehension of offenders. Quelling of disturbances. (a) As used in this section, "apprehend" means take into custody.

      (b) Any person authorized by this code, or by regulation issued under it, to apprehend persons subject to this code, any marshal of a court-martial appointed pursuant to the provisions of this code, and any peace officer authorized to do so by law, may do so upon reasonable belief that an offense has been committed and the person apprehended committed it.

      (c) Commissioned officers, warrant officers, petty officers and noncommissioned officers have authority to quell quarrels, frays and disorders among persons subject to this code and to apprehend persons subject to this code who take part therein.

      (1967, P.A. 717, S. 6.)

      Sec. 27-147. Apprehension of deserters by civil officers. Any civil officer having authority to apprehend offenders under the laws of the United States or of a state, territory, commonwealth, or possession, or the District of Columbia may summarily apprehend a deserter from the state military forces and deliver him into the custody of the state military forces. If an offender is apprehended outside the state, his return to the area must be in accordance with normal extradition procedures or reciprocal agreement.

      (1967, P.A. 717, S. 7.)

      Sec. 27-148. Arrest or confinement of enlisted personnel and officers. (a) As used in this section, "arrest" means the restraint of a person by an order, not imposed as a punishment for an offense, directing him to remain within certain specified limits, and "confinement" means the physical restraint of a person.

      (b) An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to this code or through any person authorized by this code to apprehend persons. A commanding officer may authorize warrant officers, petty officers, or noncommissioned officers to order enlisted members of his command or subject to his authority into arrest or confinement.

      (c) A commissioned officer or a warrant officer may be ordered apprehended or into arrest or confinement only by a commanding officer to whose authority he is subject, by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons apprehended or into arrest or confinement may not be delegated.

      (d) No person may be ordered apprehended or into arrest or confinement except for probable cause.

      (e) This section does not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.

      (1967, P.A. 717, S. 8.)

      Sec. 27-149. Restraint of persons charged with offenses. Any person subject to this code charged with an offense under this code shall be ordered into arrest or confinement, as circumstances may require. When any person subject to this code is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him. The accused may be admitted to bail by posting bond in the amount ordered by the convening authority, but not to exceed twice the authorized fine for such offense.

      (1967, P.A. 717, S. 9.)

      Sec. 27-150. Place of confinement. Persons confined other than in a guard house, whether before, during or after trial by a military court, shall be confined in civil jails, penitentiaries, or prisons designated by the Governor or by such person as he may authorize to act.

      (1967, P.A. 717, S. 10.)

      Sec. 27-151. Duty of community correctional center, jail and prison officers. (a) No provost marshal, commander of a guard, master at arms, warden, keeper, or officer of a community correctional center or any other jail, penitentiary, or prison designated under section 27-150, shall refuse to receive or keep any prisoner committed to his charge, when the committing commissioned officer furnishes a statement, signed by him, of the offense charged against the prisoner.

      (b) Every commander of a guard, master at arms, warden, keeper, or officer of a community correctional center or of any other jail, penitentiary, or prison designated under section 27-150, to whose charge a prisoner is committed shall, within twenty-four hours after that commitment or as soon as he is relieved from guard, report to the commanding officer of the prisoner the name of the prisoner, the offense charged against him, and the name of the person who ordered or authorized the commitment.

      (1967, P.A. 717, S. 11; 1969, P.A. 297; P.A. 89-221, S. 3.)

      History: 1969 act replaced jails with community correctional centers; P.A. 89-221 amended Subsec. (a) to replace "committing person" with "committing commissioned officer".

      Sec. 27-152. Punishment prohibited before trial. Subject to section 27-199, no person, while being held for trial or the result of trial, shall be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline, and may be required to perform such labor as may be necessary for the policing and sanitation of his living quarters and mess facilities and the area immediately adjacent thereto.

      (1967, P.A. 717, S. 12.)

      Sec. 27-153. Trial by civil authority. (a) Under such regulations as may be prescribed by the Governor, a person subject to this code who is accused of an offense against civil authority may be delivered, upon request of such authority, to the civil authority for trial.

      (b) When delivery under subsection (a) of this section is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender after having answered to the civil authorities for his offense shall, upon the request of competent military authority, be returned to military custody for the completion of his sentence.

      (1967, P.A. 717, S. 13.)

      Sec. 27-154. Nonjudicial disciplinary punishments for minor offenses. (a) Under rules prescribed by the Military Department, limitations may be placed upon the kind and amount of punishment authorized by this section and upon categories of commanding officers and warrant officers exercising command authorized to impose that punishment. Rules may also be prescribed with respect to suspension of punishments authorized under this section and to procedures for the implementation of the provisions of this section. Notwithstanding the foregoing, punishment may not be imposed upon any member of the state military forces under subsections (b) and (c) of this section, if the member has, before imposition of this punishment, requested that the matter be disposed of by a nonjudicial punishment panel pursuant to subsection (i) of this section. In no case may punishment be imposed if the member has demanded a trial by court-martial.

      (b) Subject to the provisions of subsection (a) of this section, a commanding officer may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial:

      (1) Upon officers of his command:

      (A) Restriction to certain specified limits, with or without suspension from duty, for not more than ten consecutive days; or

      (B) If imposed by a general officer, arrest in quarters for not more than fourteen consecutive days; forfeiture of not more than one-half of one month's base pay entitlement per month for two months; a fine in an amount not greater than that which could be forfeited; restriction to certain specified limits, with or without suspension from duty, for not more than fourteen consecutive days; or detention of not more than one-half of one month's base pay entitlement per month for two months; and

      (2) Upon other personnel of his command:

      (A) Correctional custody for not more than seven consecutive days;

      (B) Forfeiture of not more than one-half month's base pay entitlement for one month or a fine in an amount not greater than that which could be forfeited;

      (C) Reduction to the next inferior grade, if the grade from which the demotion is made is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction;

      (D) Extra duties, including fatigue or other duties, for not more than ten consecutive days;

      (E) Restriction to certain specified limits without suspension from duty for not more than ten consecutive days;

      (F) Detention of not more than one-half of one month's pay entitlement for one month; or

      (G) If imposed by an officer of the grade of major or above, correctional custody for not more than fourteen consecutive days; forfeiture of not more than one-half of one month's base pay entitlement for two months; a fine in an amount not greater than that which could be forfeited; reduction to the lowest or any intermediate pay grade, if the grade from which the demotion is made is within the promotion authority of the officer imposing the reduction or any other officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades; extra duties, including fatigue or other duties, for not more than fourteen consecutive days; restrictions to certain specified limits, with or without suspension from duty, for not more than fourteen consecutive days; or detention of not more than one-half of one month's base pay entitlement per month for two months.

      (c) An officer in charge may impose upon enlisted members assigned to the unit of which he is in charge such of the punishments, authorized under subdivision (2) of subsection (b) of this section, as may be set forth by regulation.

      (d) The officer who imposes punishment authorized in subsection (b) of this section, or a successor in command, may at any time:

      (1) Suspend probationally any part or amount of the unexecuted punishment;

      (2) Remit all or part of any punishment, whether or not executed, and restore all rights, privileges and property;

      (3) Mitigate any part or amount of the unexecuted punishment or any reduction in grade to forfeiture or detention of pay.

      (e) An appeal shall be to the next higher authority. The appeal shall be promptly acted upon. The appeal must be referred to a judge advocate when punishment is arrest in quarters for more than seven days, correctional custody for more than seven days, forfeiture of seven days pay, reduction of one or more pay grades of an E-4 or higher ranking individual, extra duties for more than ten days, restriction for more than ten days or detention of more than fourteen days pay.

      (f) The imposition and enforcement of disciplinary punishment under this section is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable under this section. The fact that a disciplinary punishment has been enforced may be shown by the accused at trial, and shall be considered in determining the measure of punishment to be adjudged in the event of a guilty verdict.

      (g) Any punishment authorized by this section which is measured in terms of days shall, when served in a status other than annual field training, be construed to mean consecutive active service days for pay purposes.

      (h) A fine imposed pursuant to this section may be enforced as a money judgment in accordance with chapter 906.

      (i) (1) In the event that a member of the state military forces demands that nonjudicial punishment proceedings against or with respect to him be disposed of by a hearing before a nonjudicial punishment panel in lieu of his commanding officer, this subsection shall apply.

      (2) The commanding officer shall notify the individual, verbally and in writing, of the following: (A) The nature of the alleged wrongdoing, (B) his intent to dispose of the matter, if further action after investigation is warranted, by nonjudicial punishment, and (C) his advice to the individual of his right to counsel and other nonjudicial punishment procedural rights as set forth by regulation. The individual shall make an election for hearing and disposition by the panel following receipt of such written notice. He shall be provided opportunity to consult with a judge advocate prior to making his election.

      (3) The panel shall consist of three members, appointed by the commander's next higher authority, with the same qualifications as provided with respect to membership on a court-martial. The senior member shall be the chairman. The most junior member shall be the recorder and shall record summaries of the proceedings.

      (4) The panel acting by majority vote has the same authority and responsibility in conducting the proceeding and disposing of the matter, including imposing nonjudicial punishment, as has a field grade officer pursuant to this section. The panel shall forward its recommendation for disposition and imposition of punishment, if any, to the appointing authority. The appointing authority shall approve the recommended punishment or any part or amount as he sees fit and may suspend, mitigate or remit as he deems appropriate. The appointing authority may not approve any punishment in excess of that approved by the panel.

      (5) Procedural requirements for a nonjudicial hearing, and disposition thereof, by the panel under this subsection shall in all respects be the same as would otherwise be applicable for disposition by the commanding officer, including, without limitation, the individual's right to counsel, to submit matters in extenuation, mitigation or defense and to call and examine witnesses, to the extent witnesses are reasonably available.

      (6) Appeals from the decision of the appointing authority, if adverse to the individual, may be taken directly to the next higher authority to act upon appeal as set forth in this section with respect to nonjudicial punishment appeals generally.

      (1967, P.A. 717, S. 14; P.A. 89-223.)

      History: P.A. 89-223 completely replaced former provisions with comparable provisions and made certain changes including revising the number and types of disciplinary punishments a commanding officer may impose upon officers of his command and upon other personnel of his command, transferring authority to issue regulations limiting the kind and amount of punishment and categories of officers authorized to impose that punishment from the governor to the military department, prohibiting punishment being imposed by an officer if the individual has requested that the matter be disposed of by a nonjudicial punishment panel or if the member has demanded a trial by court-martial, authorizing the officer who imposes punishment or a successor to mitigate the unexecuted punishment or any reduction in grade to forfeiture or detention of pay, deleting a provision specifying that a pay and allowance forfeiture applies to pay and allowances accruing before the date of punishment as well as after, specifying when an appeal must be referred to a judge advocate, deleting a provision that specified that a person who appeals a punishment may in the meantime be required to undergo the punishment adjudged, adding provision requiring punishment which is measured in terms of days to be construed to mean consecutive active service days for pay purposes, adding provision authorizing a fine to be enforced as a money judgment, and adding provisions authorizing an individual to elect a hearing and disposition by a nonjudicial punishment panel in lieu of his commanding officer and specifying the composition and procedure of the panel.

      Sec. 27-155. Kinds of courts-martial. (a) In the state military forces not in federal service, there shall be general, special and summary courts-martial constituted like similar courts of the armed forces of the United States. They shall have the jurisdiction and powers, except as to punishments, and shall follow the forms and procedures provided for those courts.

      (b) There shall be three kinds of courts-martial: (1) General courts-martial, consisting of (A) a military judge and not less than five members; or (B) only a military judge, if, before the court is assembled, the accused, knowing the identity of the military judge and after consultation with defense counsel, requests in writing a court composed only of a military judge and the military judge approves; (2) special courts-martial, consisting of (A) not less than three members; or (B) a military judge and not less than three members; or (C) only a military judge, if, before the court is assembled, the accused, knowing the identity of the military judge and after consultation with defense counsel, requests in writing a court composed only of a military judge and the military judge approves; and (3) summary courts-martial, consisting of one commissioned officer.

      (1967, P.A. 717, S. 15; P.A. 77-295, S. 1.)

      History: P.A. 77-295 provided in Subsec. (b) an election for accused to be tried by a military judge alone with the approval of the military judge in general and special courts-martial, substituted "military judge" for "law officer" where appearing and also provided for a military judge and three members as well as a court of three members only as constituents of a special court-martial.

      Sec. 27-156. Jurisdiction of forces. Each force of the state military forces shall have court-martial jurisdiction over all persons subject to this code. The exercise of jurisdiction by one force over personnel of another force shall be in accordance with regulations prescribed by the Governor.

      (1967, P.A. 717, S. 16.)

      Sec. 27-157. Jurisdiction of general courts-martial. Subject to section 27-156, general courts-martial shall have jurisdiction to try persons subject to this code for any offense made punishable by this code and may, under such limitations as the Governor may prescribe, adjudge any of the following punishments: (1) A fine of not more than two hundred dollars; (2) forfeiture of pay and allowances of not more than two hundred dollars; (3) a reprimand; (4) dismissal or dishonorable discharge; (5) reduction of enlisted persons to a lower grade, or (6) any combination of these punishments.

      (1967, P.A. 717, S. 17.)

      Sec. 27-158. Jurisdiction of special courts-martial. Subject to section 27-156, special courts-martial shall have jurisdiction to try persons subject to this code for any offense for which they may be punished under this code. A special court-martial shall have the same powers of punishment as a general court-martial, except that no fine or forfeiture of pay and allowances imposed by a special court-martial shall be more than one hundred dollars for a single offense.

      (1967, P.A. 717, S. 18.)

      Sec. 27-159. Jurisdiction of summary courts-martial. (a) Subject to section 27-156, summary courts-martial shall have jurisdiction to try persons subject to this code, except officers, for any offense made punishable by this code.

      (b) No person with respect to whom summary courts-martial have jurisdiction shall be brought to trial before a summary court-martial if he objects thereto, unless under section 27-154 he has been permitted and has elected to refuse punishment under that section. If objection to trial by summary court-martial is made by an accused who has not been permitted to refuse punishment under said section, trial shall be ordered by special or general court-martial, as may be appropriate.

      (c) A summary court-martial may sentence to a fine of not more than twenty-five dollars for a single offense, to forfeiture of pay and allowances of not more than twenty-five dollars, and to reduction of enlisted persons to a lower grade.

      (1967, P.A. 717, S. 19.)

      Sec. 27-160. Approval of Governor prerequisite to execution of dismissal or dishonorable discharge sentence. In the state military forces not in federal service, no sentence of dismissal or dishonorable discharge shall be executed until it is approved by the Governor.

      (1967, P.A. 717, S. 20.)

      Sec. 27-161. Court-martial to have complete record of procedures and testimony. No dishonorable discharge, bad conduct discharge or dismissal shall be adjudged by any court-martial unless a complete record of the procedures and testimony before the court has been made.

      (1967, P.A. 717, S. 21.)

      Sec. 27-162. Sentence of confinement in lieu of fine. In the state military forces not in federal service, a court-martial may, instead of imposing a fine, sentence to confinement for not more than one day for each dollar of the authorized fine.

      (1967, P.A. 717, S. 22.)

      Sec. 27-163. Convening of general courts-martial by Governor. In the state military forces not in federal service, general courts-martial may be convened by the Governor.

      (1967, P.A. 717, S. 23.)

      Sec. 27-164. Commanding officer may convene special courts-martial. (a) In the state military forces not in federal service, the commanding officer of a garrison, fort, post, camp, air base, auxiliary air base, or other place where troops are on duty, or of a brigade, regiment, wing, group, detached battalion, separate squadron, or other detached command, may convene special courts-martial. Special courts-martial may also be convened by superior authority. If any such officer is an accuser, the court shall be convened by superior competent authority.

      (b) No special court-martial shall try a commissioned officer.

      (1967, P.A. 717, S. 24.)

      Sec. 27-165. Commanding officer may convene summary courts-martial. (a) In the state military forces not in federal service, the commanding officer of a garrison, fort, post, camp, air base, auxiliary air base, or other place where troops are on duty, or of a regiment, wing, group, detached battalion, detached squadron, detached company, or other detachment, may convene a summary court-martial consisting of one commissioned officer. The proceedings shall be informal.

      (b) When only one commissioned officer is present with a command or detachment he shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases brought before him. Summary courts-martial may, however, be convened in any case by superior competent authority, when considered desirable by him.

      (1967, P.A. 717, S. 25.)

      Sec. 27-166. Who may serve on courts-martial. (a) Any commissioned officer of or on duty with the state military forces is eligible to serve on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial.

      (b) Any warrant officer of or on duty with the state military forces is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought before such courts for trial.

      (c) (1) Any enlisted member of the state military forces who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member who may lawfully be brought before such courts for trial, but he shall serve as a member of a court only if, before the convening of the court, the accused personally has requested in writing that enlisted members serve on it. No accused who has made such a request shall be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court may be convened and the trial held without them, provided the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained. (2) In this section, "unit" means any regularly organized body of the state military forces not larger than a company, a squadron, a division of the naval militia, or a body corresponding to one of them.

      (d) (1) When it can be avoided, no person subject to this code shall be tried by a court-martial any member of which is junior to him in rank or grade. (2) When convening a court-martial, the convening authority shall detail as members thereof such members as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No person shall serve as a member of a general or special court-martial if he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case. If within the command of the convening authority there is present and not otherwise disqualified a commissioned officer who is a member of the bar of the highest court of the state and of appropriate rank and grade, the convening authority shall appoint him as president of a special court-martial, provided failure to meet this requirement shall, in no case, divest a military court of jurisdiction.

      (e) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. Under such regulations as the adjutant general may prescribe, the convening authority may delegate his authority under this subsection to his staff judge advocate, a legal officer, or any other principal assistant.

      (1967, P.A. 717, S. 26; P.A. 89-221, S. 4.)

      History: P.A. 89-221 added Subsec. (e) authorizing the convening authority to excuse a member of the court from participating in the case and to delegate his authority to excuse a member to his staff judge advocate, a legal officer or any other principal assistant.

      Sec. 27-167. Military judge of general or special court-martial. (a) The Adjutant General or his designee shall appoint each military judge. A military judge shall be detailed to each general court-martial. Subject to regulations of the Adjutant General, a military judge may be detailed to any special court-martial. The Adjutant General shall prescribe regulations providing for the manner in which military judges are detailed for such courts-martial and for the persons who are authorized to detail military judges for such courts-martial. The military judge shall preside over each open session of the court-martial to which he has been detailed.

      (b) Unless the court-martial was convened by the Governor or the Adjutant General, neither the convening authority nor any member of his staff shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to his performance of duty as a military judge.

      (c) No person shall act as military judge in a case if he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case.

      (d) The military judge shall not consult with the members of the court, other than on the form of the findings as provided in section 27-181, except in the presence of the accused, trial counsel, and defense counsel, nor shall he vote with the members of the court.

      (1967, P.A. 717, S. 27; P.A. 77-295, S. 2; P.A. 89-221, S. 5.)

      History: P.A. 77-295 substituted "appoint" for "detail" and "military judge" for "law officer" where appearing; P.A. 89-221 amended Subsec. (a) to replace provision requiring the authority convening a general court martial to appoint as military judge thereof a commissioned officer and specifying the qualifications of such officer with provisions re the appointment of military judges, the detailing of military judges to general and special courts-martial and the presiding of military judges over open sessions of courts-martial, added a new Subsec. (b) re the preparation and review of a report re the effectiveness, fitness or efficiency of the military judge, designated the last sentence of Subsec. (a) as Subsec. (c) and replaced "law officer" with "military judge", and redesignated Subsec. (b) as Subsec. (d).

      Sec. 27-168. Trial and defense counsel. (a) For each general and special court-martial the authority convening the court shall detail trial counsel and defense counsel, and such assistants as he considers appropriate. No person who has acted as investigating officer, law officer, or court member in any case shall act later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant defense counsel in the same case. No person who has acted for the prosecution shall act later in the same case for the defense, nor shall any person who has acted for the defense act later in the same case for the prosecution.

      (b) Trial counsel or defense counsel detailed for a general or special court-martial shall be a member of the bar of the highest court of the state, or a member of the bar of a federal court.

      (1967, P.A. 717, S. 28.)

      Sec. 27-169. Court reporters. Interpreters. The convening authority of a general or special court-martial or court of inquiry shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court. Under like regulations the convening authority of a military court may detail or employ interpreters who shall interpret for the court.

      (1967, P.A. 717, S. 29.)

      Sec. 27-170. Absent and additional members. (a) No member of a general or special court-martial shall be absent or excused after the court has been assembled for the trial of the accused unless excused as a result of a challenge, excused by the military judge for physical disability or other good cause, or excused by order of the convening authority for good cause.

      (b) Whenever a general court-martial other than a general court-martial composed of a military judge only is reduced below five members, the trial shall not proceed unless the convening authority details new members sufficient in number to provide not less than five members. When the new members have been sworn, the trial shall proceed as if no evidence had previously been introduced, unless the accused stipulates to the reading of the recorded testimony of each witness previously examined to the court in the presence of the military judge, the accused and counsel.

      (c) Whenever a special court-martial other than a special court-martial composed of a military judge only is reduced below three members, the trial shall not proceed unless the convening authority details new members sufficient in number to provide not less than three members. When the new members have been sworn, the trial shall proceed as if no evidence has previously been introduced, unless the accused stipulates to the reading of the verbatim record of the testimony of previously examined witnesses or a stipulation thereof to the court in the presence of the accused and counsel.

      (d) If the military judge of a court-martial composed of a military judge only is unable to proceed with the trial because of physical disability, or as a result of a challenge, or for other good cause, the trial shall proceed, subject to any applicable provision of this chapter, after the appointment of a new military judge as if no other evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a stipulation thereof is read in court in the presence of the new military judge, the accused and counsel for both sides.

      (1967, P.A. 717, S. 30; P.A. 77-295, S. 3; P.A. 89-221, S. 6.)

      History: P.A. 77-295 excepted general or special court-martial consisting of single military judge from application of Subsecs. (b) and (c), provided in new Subsec. (d) for procedure to be followed where the single military judge court is unable to proceed because of disability or challenge or other good cause; P.A. 89-221 amended Subsec. (a) to prohibit a member being absent or excused "after the court has been assembled for the trial of the accused" rather than "after the accused has been arraigned" and to specify that a member may be excused "by the military judge" for physical disability "or other good cause".

      Sec. 27-171. Preferring of charges. (a) Charges and specifications shall be signed by a person subject to this code under oath before a person authorized by this code to administer oaths and shall state: (1) That the signer has personal knowledge of, or has investigated, the matters set forth herein; and (2) that they are true in fact to the best of his knowledge and belief.

      (b) Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the person accused shall be informed of the charges against him as soon as practicable.

      (1967, P.A. 717, S. 31.)

      Sec. 27-172. Protection against self-incrimination. (a) No person subject to this code shall compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.

      (b) No person subject to this code shall interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial, and that he has a right to consult and have with him during the interrogation, an attorney provided by him or appointed for him.

      (c) No person subject to this code shall compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.

      (d) No statement obtained from any person in violation of this section, or through the use of coercion, unlawful influence, or unlawful inducement, shall be received in evidence against him in a trial by court-martial.

      (1967, P.A. 717, S. 32.)

      Sec. 27-173. Preliminary investigation. Rights of accused. (a) No charge or specification shall be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.

      (b) The accused shall be advised of the charges against him and of his right to be represented at that investigation by counsel. Upon his own request he shall be represented by civilian counsel if provided by him, or military counsel of his own selection if such counsel is reasonably available, or by counsel detailed by the officer exercising general court-martial jurisdiction over the command. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.

      (c) If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b) of this section, no further investigation of that charge is necessary under this section unless it is demanded by the accused after he is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in his own behalf.

      (d) Failure to meet any requirement prescribed in this section shall not divest a military court of jurisdiction.

      (1967, P.A. 717, S. 33.)

      Sec. 27-174. Charges and investigation papers forwarded to Governor. When a person is held for trial by general court-martial the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the Governor. If that is not practicable, he shall report in writing to the Governor the reasons for delay.

      (1967, P.A. 717, S. 34.)

      Sec. 27-175. Advice of staff judge advocate and reference for trial. Corrections in charges and specifications. (a) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to the State Judge Advocate for consideration and advice. The convening authority may not refer a charge to a general court-martial for trial unless he has been advised in writing by the staff judge advocate that: (1) The specification alleges an offense under this chapter; (2) the specification is warranted by the evidence indicated in the report of investigation under section 27-173, if there is such a report; and (3) a court-martial would have jurisdiction over the accused and the offense.

      (b) The advice of the staff judge advocate under subsection (a) of this section with respect to a specification under a charge shall include a written and signed statement by the staff judge advocate (1) expressing his conclusions with respect to each matter set forth in subsection (a) of this section; and (2) recommending action that the convening authority take regarding the specification. If the specification is referred for trial, the recommendation of the staff judge advocate shall accompany the specification.

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

      (1967, P.A. 717, S. 35; P.A. 89-221, S. 7.)

      History: P.A. 89-221 amended Subsec. (a) to replace as a precondition of referring a charge to a general court-martial the requirement that the convening authority "has found that the charge alleges an offense under this code and is warranted by evidence indicated in the report of the investigation" with requirement that the convening authority "has been advised in writing by the staff judge advocate that (1) the specification alleges an offense under this chapter; (2) the specification is warranted by the evidence indicated in the report of investigation under Sec. 27-173, if there is such a report, and (3) a court-martial would have jurisdiction over the accused and the offense", added a new Subsec. (b) requiring the advice of the staff judge advocate to include a written and signed statement re his conclusions and recommendations and requiring the recommendation of the staff judge advocate to accompany the specification if the specification is referred for trial, and redesignated former Subsec. (b) as Subsec. (c).

      Sec. 27-176. Service of charges on accused. Time for trial. The trial counsel to whom court-martial charges are referred for trial shall cause to be served upon the accused a copy of the charges upon which trial is to be had. In time of peace no person shall, against his objection, be brought to trial before a general court-martial within a period of five days after the service of the charges upon him, or before a special court-martial within a period of three days after the service of the charges upon him.

      (1967, P.A. 717, S. 36.)

      Sec. 27-177. Mittimus for confinement on failure to appear for trial. Bail. Confinement pending trial. When an accused person has been arrested for failure to appear before a court-martial for trial, the military judge, president of the court-martial, if a special court-martial to which no military judge has been detailed, or summary court officer to whom the charges have been referred for trial may issue a mittimus for the confinement of such person pending trial. In such cases the accused shall be admitted to bail, the amount of the bail fixed, but not to exceed twice the authorized fine for the offense charged, and the surety or sureties thereon approved by the military judge, president of the court-martial, if a special court-martial to which no military judge has been detailed, or the summary court officer issuing the mittimus. In default of bail such person shall be confined pending trial. No person shall be kept in confinement pending trial for more than five days.

      (1967, P.A. 717, S. 37; P.A. 89-221, S. 8.)

      History: P.A. 89-221 authorized the "military judge" and the president of the court-martial, "if a special court-martial to which no military judge has been detailed", to issue the mittimus and to approve the surety or sureties.

      Sec. 27-178. Procedure. Rules of evidence. The procedure, including modes of proof, in cases before military courts and other military tribunals 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 the courts of the state, but which shall not be contrary to or inconsistent with this code.

      (1967, P.A. 717, S. 38.)

      Sec. 27-179. Censure of court or member, coercion prohibited. (a) No authority convening a general, special or summary court-martial nor any other commanding officer, or officer serving on the staff thereof, shall censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this code shall attempt to coerce or, by any unauthorized means, influence the action of the court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of this subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.

      (b) 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 duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member of a court-martial; or (2) give a less favorable rating or evaluation of any member of the state military forces because of the zeal with which such member as defense counsel represented any accused before a court-martial.

      (c) Any person who violates this section shall be punished as a court-martial directs.

      (1967, P.A. 717, S. 39; P.A. 77-295, S. 11; P.A. 89-221, S. 9.)

      History: P.A. 77-295 substituted "military judge" for "law officer"; P.A. 89-221 added provision exempting from prohibitions of Subsec. (a) certain general instructional or informational courses in military justice and statements and instructions given in open court, added Subsec. (b) re the prohibition when preparing certain reports on considering or evaluating the performance of duty of a member of a court-martial or giving a less favorable rating or evaluation because of the zeal in representing an accused, and designated the last sentence of Subsec. (a) as Subsec. (c).

      Sec. 27-180. Prosecution. Trial counsel. Defense counsel. Assistant counsel. (a) The trial counsel of a general or special court-martial shall prosecute in the name of the state, and shall, under the direction of the court, prepare the record of the proceedings.

      (b) The accused has the right to be represented in his defense before a general or special court-martial by civilian counsel if provided by him, or by military counsel of his own selection if reasonably available, or by the defense counsel detailed under section 27-168. Should the accused have counsel of his own selection, the defense counsel, and assistant defense counsel, if any, who were detailed, shall, if the accused so desires, act as his associate counsel; otherwise they shall be excused at the request of the accused.

      (c) In every court-martial proceeding, the defense counsel may, in the event of conviction, forward for attachment to the record of proceedings a brief of such matters as he feels should be considered in behalf of the accused on review, including any objection to the contents of the record which he considers appropriate.

      (d) An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he is qualified to be a trial counsel as required by section 27-168, perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel of the court. An assistant trial counsel of a special court-martial may perform any duty of the trial counsel.

      (e) An assistant defense counsel of a general or special court-martial may, under the direction of the defense counsel or when he is qualified to be the defense counsel as required by section 27-168, perform any duty imposed by law, regulation, or the custom of the service upon counsel for the accused.

      (1967, P.A. 717, S. 40; P.A. 89-221, S. 10.)

      History: P.A. 89-221 amended Subsec. (b) to provide that detailed defense counsel and assistant defense counsel shall be excused "at the request of the accused" rather than "by the president of the court".

      Sec. 27-181. Sessions. (a) 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 call the court into session without the presence of the members for the purpose of (1) 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, (2) hearing and ruling upon any matter which may be ruled upon by the military judge under this section, whether or not the matter is appropriate for later consideration or decision by the members of the court, (3) holding the arraignment and receiving the pleas of the accused, and (4) performing any other procedural function which may be performed by the military judge under this section, subsection (b) of section 27-155, subsection (a) of section 27-184, subsection (a) of section 27-196 and sections 27-141, 27-167, 27-170, 27-179, 27-181, 27-182, 27-183 and 27-193 and which does not require the presence of the members of the court. Such 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.

      (b) 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 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, in cases in which a military judge has been appointed to the court, the military judge.

      (1967, P.A. 717, S. 41; P.A. 77-295, S. 7; P.A. 89-221, S. 11.)

      History: P.A. 77-295 substituted "military judge" for "law officer" where appearing; P.A. 89-221 inserted a new Subsec. (a) specifying when and the purposes for which the military judge may call the court into session without the presence of the members and the conduct of such proceedings, formerly Subsec. (b) of Sec. 27-187, and revised former provisions of section and made them identical to former Subsec. (c) of Sec. 27-187 by deleting a provision which authorized the court to request the military judge and the reporter to appear before the court to put the findings in proper form and required those proceedings to be on the record, by replacing "Whenever a general or special court-martial deliberates or votes" with "When the members of a court-martial deliberate or vote", by requiring all other proceedings to be in the presence of the military judge "in cases in which a military judge has been appointed to the court" rather than "in general court-martial cases", and by designating such revised former provisions as Subsec. (b).

      See Sec. 27-193 re secret ballot voting by members of court-martial and re powers and duties of military judge.

      Sec. 27-182. Continuance. A military judge or a court-martial may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.

      (1967, P.A. 717, S. 42; P.A. 77-295, S. 4.)

      History: P.A. 77-295 added "A military judge or a" before "court-martial".

      Sec. 27-183. Challenges. (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 if none, the court, shall determine the relevancy and validity of challenges for cause, and shall 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.

      (b) Each accused and the trial counsel is entitled to one peremptory challenge, but the military judge shall not be challenged except for cause.

      (1967, P.A. 717, S. 43; P.A. 77-295, S. 5.)

      History: P.A. 77-295 provided for challenges of the military judge and members of a general or special court-martial, further provided for the military judge or, if none, the court to make the determinations on challenges and substituted "military judge" for "law officer".

      Sec. 27-184. Oaths. (a) Before performing their respective duties, military judges, members of general and special courts-martial, trial counsel, assistant trial counsel, defense counsel, assistant or associate defense counsel, reporters, and interpreters shall take an oath to perform their duties faithfully. The form of the oath shall be as set forth in section 1-25. The Adjutant General shall adopt regulations in accordance with the provisions of chapter 54 prescribing the time and place of the taking of the oath, the manner of recording the same, and whether the oath shall be taken for all cases in which those duties are to be performed or for a particular case. These regulations may provide that an oath to perform faithfully duties as a military judge, trial counsel, assistant trial counsel, defense counsel, or assistant or associate defense counsel may be taken at any time by any judge advocate or other person certified to be qualified or competent for the duty, and if such an oath is taken it need not be taken again at the time the judge advocate, or other person is detailed to that duty.

      (b) Each witness before a military court shall be examined on oath or affirmation.

      (1967, P.A. 717, S. 44; P.A. 77-295, S. 6; P.A. 89-221, S. 12.)

      History: P.A. 77-295 substituted in Subsec. (a) "military judge" for "law officer"; P.A. 89-221 amended Subsec. (a) to delete reference to an "affirmation" and requirement that the oath be taken "in the presence of the accused" and to add provisions requiring the specified personnel to take an oath "before performing their respective duties", requiring an associate defense counsel to take an oath, specifying the form of the oath, requiring the adjutant general to adopt regulations and authorizing the regulations to contain a provision that once an oath is taken by certain personnel it need not be taken again.

      Sec. 27-185. Statute of limitations. (a) A person charged with desertion or absence without leave in time of war, or with aiding the enemy or with mutiny may be tried and punished at any time without limitation.

      (b) Except as otherwise provided in this section, a person charged with desertion in time of peace or with the offense punishable under section 27-256 is not liable to be tried by court-martial if the offense was committed more than three years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.

      (c) 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 section 27-154 if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under said section.

      (d) Periods in which the accused was absent from territory in which the state has the authority to apprehend him, 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.

      (1967, P.A. 717, S. 45.)

      Sec. 27-186. Second trial for same offense prohibited. (a) No person shall, without his consent, be tried a second time in any military court of the state for the same offense.

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

      (c) 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 in the sense of this section.

      (1967, P.A. 717, S. 46.)

      Sec. 27-187. Pleading by accused. If an accused arraigned before a court-martial makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.

      (1967, P.A. 717, S. 47; P.A. 77-295, S. 8; P.A. 89-221, S. 13.)

      History: P.A. 77-295 added new Subsecs. (b) and (c) providing for the military judge to hear and dispose of preliminary matters without the presence of the court but in presence of accused, defense and trial counsel and for deliberations and vote of court to be with only members present with all other proceedings recorded and in the presence of the counsels, accused and military judge; P.A. 89-221 deleted Subsecs. (b) and (c) and reenacted them as Subsecs. (a) and (b), respectively, of Sec. 27-181.

      Sec. 27-188. Obtaining of witnesses and evidence. (a) The trial counsel, the defense counsel and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the Governor may prescribe.

      (b) The military judge, president of a court-martial, if a special court-martial to which no military judge has been detailed, or a summary court officer may: (1) Issue a warrant for the arrest of any accused person who, having been served with a warrant and a copy of the charges, disobeys a written order by the convening authority to appear before the court; (2) issue subpoenas duces tecum and other subpoenas; (3) enforce by attachment the attendance of witnesses and the production of books and papers; and (4) sentence for refusal to be sworn or to answer, as provided in actions before civil courts of the state.

      (c) Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall run to any part of the state and shall be executed by civil officers as prescribed by the laws of the state.

      (1967, P.A. 717, S. 48; P.A. 89-221, S. 14.)

      History: P.A. 89-221 amended Subsec. (b) to authorize the "military judge" and the president of a court-martial "if a special court-martial to which no military judge has been detailed" to take the enumerated actions.

      Sec. 27-189. Refusal of witness to appear. Witness fees. (a) Any person not subject to this code who: (1) Has been duly subpoenaed to appear as a witness or to produce books and records before a military court or before any military or civil officer designated to take a deposition to be read in evidence before such a court; (2) has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending the civil courts of the state; and (3) refuses to appear and testify or refuses to produce any evidence which that person has been duly subpoenaed to produce, may be, by warrant signed by the military judge, by the president of the court-martial, if a special court-martial to which no military judge has been detailed, or by the summary court officer and directed to a state marshal or any constable of the town in which such witness resides, committed to a community correctional center, there to be held at his own expense until discharged by due course of law.

      (b) The fees of all witnesses so summoned and of the state marshals, constables or indifferent persons serving such subpoenas shall be the same as provided for in civil actions in the state, and shall be taxed by the president of the court-martial or by the summary court officer.

      (c) Such fee when so taxed shall be paid by the State Comptroller to those entitled thereto, upon vouchers prepared by the trial officer or summary court officer and approved by the military judge, by the president of such court-martial, if a special court-martial to which no military judge has been detailed, or, in the case of such summary court officer, by his next higher commander.

      (1967, P.A. 717, S. 49; 1969, P.A. 297; P.A. 89-221, S. 15; P.A. 90-230, S. 38, 101; P.A. 00-99, S. 71, 154; P.A. 04-257, S. 96.)

      History: 1969 act replaced jails with community correctional centers; P.A. 89-221 amended Subsec. (a) to authorize the "military judge" and the president of the court-martial "if a special court-martial to which no military judge has been detailed" to sign a warrant committing a person to a community correctional center and amended Subsec. (c) to authorize the "military judge" and the president of the court-martial "if a special court-martial to which no military judge has been detailed" to approve vouchers; P.A. 90-230 made technical corrections in Subsecs. (a) and (c); P.A. 00-99 replaced reference to sheriff of the county and deputy sheriff with state marshal in Subsec. (a), effective December 1, 2000; P.A. 04-257 made a technical change in Subsec. (b), effective June 14, 2004.

      See Sec. 52-260 re witness fees.

      See Sec. 52-261 re fees and expenses of officers and persons serving process.

      Sec. 27-190. Contempt. A military court may punish for contempt any person who uses any menacing word, sign or gesture in its presence, or who disturbs its proceedings by any riot or disorder. The punishment may not exceed confinement for thirty days or a fine of one hundred dollars, or both.

      (1967, P.A. 717, S. 50.)

      Sec. 27-191. Depositions. (a) At any time after charges have been signed, as provided in section 27-171, any party may take oral or written depositions unless an authority competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.

      (b) A party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.

      (c) Depositions may be taken before and authenticated by any military or civil officer authorized by the laws of the state or by the laws of the place where the deposition is taken to administer oaths.

      (d) A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence before any court-martial or in any proceeding before a court of inquiry, if it appears: (1) That the witness resides or is beyond the state in which the courts-martial or court of inquiry is ordered to sit, or beyond the distance of one hundred miles from the place of trial or hearing; (2) that the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause, is unable to or refuses to appear and testify in person at the place of trial or hearing; or (3) that the present whereabouts of the witness is unknown.

      (1967, P.A. 717, S. 51.)

      Sec. 27-192. Sworn testimony in record of court of inquiry admissible, when. (a) In any case not extending to the dismissal of a commissioned officer the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence, and if the accused was physically present when the testimony was taken.

      (b) Such testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer.

      (c) Such testimony may also be read in evidence before a court of inquiry or a military board.

      (1967, P.A. 717, S. 52.)

      Sec. 27-193. Voting by members of court-martial. Rulings on questions. Determinations by military judge. (a) Voting by members of a general or special court-martial upon questions of challenge, on the findings, and on the sentence shall be by secret written ballot. The junior member of the court shall in each case count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.

      (b) The military judge and, except for questions of challenge, the president of a court-martial without a military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused, or by the president of a court-martial without a military judge upon any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court; provided the military judge or the president of a court-martial without a military judge may change any such ruling at any time during the trial. Unless such ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in section 27-194 beginning with the junior in rank.

      (c) Before a vote is taken on the findings, the military judge or the president of a court-martial without a military judge shall, in the presence of the accused and counsel, instruct the court as to the elements of the offense and charge the court: (1) That the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt; (2) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted; (3) that, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt, and (4) that the burden of proof of establishing the guilt of the accused beyond reasonable doubt is upon the state.

      (d) Subsections (a), (b) and (c) of this section shall not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the procedures and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall, in addition to such finding, on request, find the facts specially. If an opinion or memorandum of decision is filed, it shall be sufficient if the findings of fact appear therein.

      (1967, P.A. 717, S. 53; P.A. 77-295, S. 12.)