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WV Code § 15-1E-49 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-49. Depositions

(a) At any time after charges have been signed as provided in section thirty of this article, any party may take oral or written depositions unless the military judge or summary court-martial officer hearing the case or, if the case is not being heard, an authority competent to convene a court-martial for the trial of those charges forbids it for good cause.(b) The 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 or, in the case of audiotape, videotape, digital image or file, or similar material, may be played in evidence before any military court, if it appears:(1) That the witness resides or is beyond the state in which the court is ordered to sit, or beyond 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, non amenability to process, or other reasonable cause, is unable 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.
WV Code § 15-1E-50 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-50. Admissibility of Records of Courts of Inquiry

(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.(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.
WV Code § 15-1E-50a (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-50a. Defense of Lack of Mental Responsibility

(a) It is an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.(b) The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.(c) Whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall instruct the members of the court as to the defense of lack of mental responsibility under this section and charge them to find the accused:(1) Guilty;(2) Not guilty; or(3) Not guilty only by reason of lack of mental responsibility.(d) Subsection (c) does not apply to a court-martial composed of a military judge only. In the case of a court-martial composed of a military judge only or a summary court-martial officer, whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge or summary court-martial officer shall find the accused:(1) Guilty;(2) Not guilty; or(3) Not guilty only by reason of lack of mental responsibility.(e) Notwithstanding the provisions of section fifty-two of this article, the accused shall be found not guilty only by reason of lack of mental responsibility if:(1) A majority of the members of the court-martial present at the time the vote is taken determines that the defense of lack of mental responsibility has been established; or(2) In the case of a court-martial composed of a military judge only or a summary court-martial officer, the military judge or summary court-martial officer determines that the defense of lack of mental responsibility has been established.
WV Code § 15-1E-51 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-51. Voting and Rulings

(a) Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member of the court shall 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 shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused is final and constitutes the ruling of the court. However, the military judge may change the ruling at any time during the trial. Unless the 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 fifty-two of this article, beginning with the junior in rank.(c) Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them:(1) That the accused must be presumed to be innocent until his or her guilt is established by legal and competent evidence beyond reasonable doubt;(2) That in the case being considered, if there is a or reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and the accused 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 to establish the guilt of the accused beyond reasonable doubt is upon the state.(d) Subsections (a), (b), and (c) do 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 proceedings 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, on request, find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.
WV Code § 15-1E-52 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-52. Number of Votes Required

(a) No person may be convicted of an offense except as provided in section forty-two of this article or by the concurrence of two thirds of the members present at the time the vote is taken.(b) All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote, but a determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion relating to the question of the accused's sanity is a determination against the accused. A tie vote on any other question is a determination in favor of the accused.
WV Code § 15-1E-53 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-53. Court to Announce Action

A court-martial shall announce its findings and sentence to the parties as soon as determined.
WV Code § 15-1E-54 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-54. Record of Trial

(a) Each general and special court-martial shall keep a separate record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of his or her death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by that of a member, if the trial counsel is unable to authenticate it by reason of his or her death, disability, or absence. In a court-martial consisting of only a military judge, the record shall be authenticated by the court reporter under the same conditions which would impose such a duty on a member under this subsection.(b) (1) A complete verbatim record of the proceedings and testimony shall be prepared in each general and special court-martial case resulting in a conviction.(2) In all other court-martial cases, the record shall contain such matters as may be prescribed by regulations.(c) Each summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner as may be prescribed by regulations.(d) A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated.
WV Code § 15-1E-55 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-55. Cruel and Unusual Punishments Prohibited

§15-1E-55. Cruel and unusual punishments prohibited.Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment may not be adjudged by a court-martial or inflicted upon any person subject to this article. The use of irons, single or double, except for the purpose of safe custody, is prohibited.
WV Code § 15-1E-56 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-56. Maximum Limits

(a) The punishment which a court-martial may direct for an offense may not exceed such limits as prescribed by this article, but in no instance may a sentence exceed more than ten years for a military offense, nor shall a sentence of death be adjudged. A conviction by general court-martial of any military offense for which an accused may receive a sentence of confinement for more than one year is a felony offense. Except for convictions by a summary court-martial, all other military offenses are misdemeanors. Any conviction by a summary court-martial is not a criminal conviction.(b) The limits of punishment for violations of the punitive articles prescribed herein shall be lesser of the sentences prescribed by the manual for courts-martial of the United States in effect on January 1, 2004, and the state manual for courts-martial, but in no instance shall any punishment exceed that authorized by this article.
WV Code § 15-1E-57 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-57. Effective Date of Sentences

(a) Whenever a sentence of a court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement not suspended, the forfeiture may apply to pay or allowances becoming due on or after the date the sentence is approved by the convening authority. No forfeiture may extend to any pay or allowances accrued before that date.(b) Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement.(c) All other sentences of courts-martial are effective on the date ordered executed.
WV Code § 15-1E-57a (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-57a. Deferment of Sentences

(a) On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under that person's jurisdiction, the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may in that person's sole discretion defer service of the sentence to confinement. The deferment shall terminate when the sentence is ordered executed. The deferment may be rescinded at any time by the person who granted it or, if the accused is no longer under that person's jurisdiction, by the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned.(b)(1) In any case in which a court-martial sentences an accused referred to in subdivision (2) of this subsection, to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of the accused, until after the accused has been permanently released to the state military forces by a state, the United States, or a foreign country referred to in that subdivision.(2) Subdivision (1) of this subsection applies to a person subject to this article who:(A) While in the custody of a state, the United States, or a foreign country is temporarily returned by that state, the United States, or a foreign country to the state military forces for trial by court-martial; and(B) After the court-martial, is returned to that state, the United States, or a foreign country under the authority of a mutual agreement or treaty, as the case may be.(3) In this subsection, the term "state" includes the District of Columbia and any Commonwealth, Territory, or possession of the United States.(c) In any case in which a court-martial sentences an accused to confinement and the sentence to confinement has been ordered executed, but in which review of the case under subsection (a), section sixty-seven of this article is pending, the Adjutant General may defer further service of the sentence to confinement while that review is pending.
WV Code § 15-1E-58 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-58. Execution of Confinement

(a) A sentence of confinement adjudged by a court-martial, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place authorized by this article. Persons so confined are subject to the same discipline and treatment as persons regularly confined or committed to that place of confinement.(b) The omission of "hard labor" as a sentence authorized under this article does not deprive the state confinement facility from employing it, if it otherwise is within the authority of that facility to do so.(c) No place of confinement may require payment of any fee or charge for so receiving or confining a person except as otherwise provided by law.
WV Code § 15-1E-58a (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-58a. Sentences: Reduction in Enlisted Grade Upon Approval

(a) A court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes:(1) A dishonorable or bad-conduct discharge; or(2) Confinement; reduces that member to pay grade E-1, effective on the date of that approval.(b) If the sentence of a member who is reduced in pay grade under subsection (a) is set aside or disapproved, or, as finally approved, does not include any punishment named in subsection (a), the rights and privileges of which the person was deprived because of that reduction shall be restored, including pay and allowances.
WV Code § 15-1E-58b (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-58b. Sentences: Forfeiture of Pay and Allowances During Confinement

(a)(1) A court-martial sentence described in subdivision (2) of this subsection shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. The forfeiture pursuant to this section shall take effect on the date determined under subsection (a), section fifty-seven of this article and may be deferred as provided by that section. The pay and allowances forfeited, in the case of a general court-martial, shall be all pay and allowances due that member during such period and, in the case of a special court-martial, shall be two-thirds of all pay due that member during such period.(2) A sentence covered by this section is any sentence that includes:(A) Confinement for more than six months; or(B) Confinement for six months or less and a dishonorable or bad-conduct discharge or dismissal.(b) In a case involving an accused who has dependents, the convening authority or other person acting under section sixty of this article may waive any or all of the forfeitures of pay and allowances required by subsection (a) for a period not to exceed six months. Any amount of pay or allowances that, except for a waiver under this subsection, would be forfeited shall be paid, as the convening authority or other person taking action directs, to the dependents of the accused.(c) If the sentence of a member who forfeits pay and allowances under subsection (a) is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in subdivision (2), subsection (a), the member shall be paid the pay and allowances which the member would have been paid, except for the forfeiture, for the period during which the forfeiture was in effect.
WV Code § 15-1E-59 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-59. Error of Law; Lesser Included Offense

§15-1E-59. Error of law; lesser included offense.(a) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.(b) Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.
WV Code § 15-1E-61 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-61. Withdrawal of Appeal

(a) In each case subject to appellate review under this article, the accused may file with the convening authority a statement expressly withdrawing the right of the accused to such appeal. Such a withdrawal shall be signed by both the accused and his or her defense counsel and must be filed in accordance with appellate procedures as provided by law.(b) The accused may withdraw an appeal at any time in accordance with appellate procedures as provided by law.
WV Code § 15-1E-62 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-62. Appeal by the State

(a)(1) In a trial by court-martial in which a punitive discharge may be adjudged, the state may appeal the following, other than a finding of not guilty with respect to the charge or specification by the members of the court-martial, or by a judge in a bench trial so long as it is not made in reconsideration:(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.(B) An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.(C) An order or ruling which directs the disclosure of classified information.(D) An order or ruling which imposes sanctions for nondisclosure of classified information.(E) A refusal of the military judge to issue a protective order sought by the state to prevent the disclosure of classified information.(F) A refusal by the military judge to enforce an order described in paragraph (E) that has previously been issued by appropriate authority.(2) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within seventy-two hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one which excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding.(3) An appeal under this section shall be diligently prosecuted as provided by law.(b) An appeal under this section shall be forwarded to the court prescribed in section sixty-seven-a of this article. In ruling on an appeal under this article, that court may act only with respect to matters of law.(c) Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.
WV Code § 15-1E-63 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-63. Rehearings

Each rehearing under this article shall take place before a court-martial composed of members not members of the court-martial which first heard the case. Upon a rehearing the accused may not be tried for any offense of which he or she was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be approved, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory. If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes a plea with respect to the charges or specifications upon which the pretrial agreement was based, or otherwise does not comply with the pretrial agreement, the approved sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial.
WV Code § 15-1E-65 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-65. Disposition of Records After Review by the Convening Authority

Except as otherwise required by this article, all records of trial and related documents shall be transmitted and disposed of as prescribed by regulation and provided by law.
WV Code § 15-1E-67a (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-67a. Review by State Appellate Authority

Decisions of a court-martial are from a court with jurisdiction to issue felony convictions and appeals are to the West Virginia Supreme Court of Appeals. The appellate procedures to be followed shall be those provided by law for the appeal of criminal cases thereto.