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WV Code § 15-1E-32 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-32. Investigation

(a) No charge or specification may 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 the accused and of the right to be represented at that investigation by counsel. The accused has the right to be represented at that investigation as provided in section thirty-eight of this article and in regulations prescribed under this article. At that investigation, full opportunity shall be given to the accused to cross-examine witnesses against the accused, if they are available, and to present anything the accused may desire in the accused's 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), no further investigation of that charge is necessary under this section unless it is demanded by the accused after the accused 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 the accused's own behalf.(d) If evidence adduced in an investigation under this section indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense without the accused having first been charged with the offense if the accused:(1) Is present at the investigation;(2) Is informed of the nature of each uncharged offense investigated; and(3) Is afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b).(e) The requirements of this section are binding on all persons administering this article but failure to follow them does not constitute jurisdictional error.
WV Code § 15-1E-33 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-33. Forwarding of Charges

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, forwards the charges, together with the investigation and allied papers, to the person exercising general court-martial jurisdiction. If that is not practicable, the commanding officer shall report in writing to that person the reasons for delay.
WV Code § 15-1E-34 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-34. Advice of Judge Advocate and Reference for Trial

(a) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to a judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless the convening authority has been advised in writing by a judge advocate that:(1) The specification alleges an offense under this article;(2) The specification is warranted by the evidence indicated in the report of investigation under section thirty-two of this article, 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 judge advocate under subsection (a) with respect to a specification under a charge shall include a written and signed statement by the judge advocate:(1) Expressing conclusions with respect to each matter set forth in subsection (a); and(2) Recommending action that the convening authority take regarding the specification.If the specification is referred for trial, the recommendation of the judge advocate shall accompany the specification.(c) If the charges or specifications are not correct formally or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence, may be made.
WV Code § 15-1E-35 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-35. Service of Charges

The trial counsel shall serve or caused to be served upon the accused a copy of the charges. No person may, against the person's objection, be brought to trial before a general court-martial case within a period of five days after the service of charges upon the accused, or in a special court-martial, within a period of three days after the service of charges upon the accused.
WV Code § 15-1E-36 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-36. Governor or the Adjutant General May Prescribe Rules

§15-1E-36. Governor or the Adjutant General may prescribe rules.Pretrial, trial, and post-trial procedures, including modes of proof, for courts-martial cases arising under this article, and for courts of inquiry, may be prescribed by the Governor or the Adjutant General by regulations, or as otherwise provided by law, which shall apply the principles of law and the rules of evidence generally recognized in military criminal cases in the courts of the Armed Forces but which may not be contrary to or inconsistent with this article.
WV Code § 15-1E-37 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-37. Unlawfully Influencing Action of Court

(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, or officer serving on the staff thereof, may censure, reprimand, or admonish the court or any member, the 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 their functions in the conduct of the proceedings. No person subject to this article may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or court of inquiry 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 their judicial acts. The foregoing provisions of the 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) to statements and instructions given in open court by the military judge, summary court-martial officer, 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 active status, no person subject to this article may, in preparing any such report: (1) Consider or evaluate the performance of duty of any such member as a member of a court-martial or witness therein; or (2) Give a less favorable rating or evaluation of any counsel of the accused because of zealous representation before a court-martial.
WV Code § 15-1E-38 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-38. Duties of Trial Counsel and Defense Counsel

(a) The trial counsel of a general or special court-martial shall be a member in good standing of the State Bar and shall prosecute in the name of the state, and shall, under the direction of the court, prepare the record of the proceedings.(b) (1) The accused has the right to be represented in defense before a general or special court-martial or at an investigation under section thirty-two of this article as provided in this subsection.(2) The accused may be represented by civilian counsel at the provision and expense of the accused.(3) The accused may be represented:(A) By military counsel detailed under section twenty-seven of this article; or(B) By military counsel of the accused's own selection if that counsel is reasonably available as determined under subdivision (7).(4) If the accused is represented by civilian counsel, military counsel detailed or selected under subdivision (3) shall act as associate counsel unless excused at the request of the accused.(5) Except as provided under subdivision (6), if the accused is represented by military counsel of his or her own selection under paragraph (B), subdivision (3), any military counsel detailed under paragraph (A), subdivision (3), shall be excused.(6) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section twenty-seven of this article to detail counsel, in that person's sole discretion:(A) May detail additional military counsel as assistant defense counsel; and(B) If the accused is represented by military counsel of the accused's own selection under paragraph (B), subdivision (3), may approve a request from the accused that military counsel detailed under paragraph (A), subdivision (3), act as associate defense counsel.(7) The senior force judge advocate of the same force of which the accused is a member, shall determine whether the military counsel selected by an accused is reasonably available.(c) In any court-martial proceeding resulting in a conviction, the defense counsel:(1) May forward for attachment to the record of proceedings a brief of such matters as counsel determines should be considered in behalf of the accused on review, including any objection to the contents of the record which counsel considers appropriate;(2) May assist the accused in the submission of any matter under section sixty of this article; and(3) May take other action authorized by this article.
WV Code § 15-1E-39 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-39. 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, subject section thirty-five of this article, 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 article, 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 does not require the presence of the members of the court under this article.(b) These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. These proceedings may be conducted notwithstanding the number of court members and without regard to section twenty-nine.(c) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and the military judge.
WV Code § 15-1E-40 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-40. Continuances

The military judge of a court-martial or a summary court-martial may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.
WV Code § 15-1E-41 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-41. Challenges

(a)(1) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge or the court shall determine the relevancy and validity of challenges for cause and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.(2) If exercise of a challenge for cause reduces the court below the minimum number of members required by section sixteen of this article, all parties shall, notwithstanding section twenty-nine of this article, either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court. However, peremptory challenges shall not be exercised at that time.(b)(1) Each accused and the trial counsel are entitled initially to one peremptory challenge of members of the court. The military judge may not be challenged except for cause.(2) If exercise of a peremptory challenge reduces the court below the minimum number of members required by section sixteen of this article, the parties shall, notwithstanding section twenty-nine of this article, either exercise or waive any remaining peremptory challenge, not previously waived, against the remaining members of the court before additional members are detailed to the court.(3) Whenever additional members are detailed to the court, and after any challenges for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to one peremptory challenge against members not previously subject to peremptory challenge.
WV Code § 15-1E-42 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-42. Oaths or Affirmations

(a) Before performing their respective duties, military judges, general and special courts-martial members, trial counsel, defense counsel, reporters, and interpreters shall take an oath or affirmation in the presence of the accused to perform their duties faithfully. The form of the oath or affirmation, the time and place of the taking thereof, the manner of recording the same, and whether the oath or affirmation shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulation or as provided by law. These regulations may provide that an oath or affirmation to perform faithfully the duties as a military judge, trial counsel, or defense counsel may be taken at any time by any judge advocate or other person certified or designated to be qualified or competent for the duty, and if such an oath or affirmation is taken, it need not again be taken at the time the judge advocate or other person is detailed to that duty.(b) Each witness before a court-martial shall be examined under oath or affirmation.
WV Code § 15-1E-43 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-43. Statute of Limitations

(a) Except as otherwise provided in this article, a person charged with any offense is not liable to be tried by court-martial or punished under section fifteen of this article if the offense was committed more than three years before the receipt of sworn charges and specifications by an officer exercising court-martial jurisdiction over the command or before the imposition of punishment under section fifteen of this article.(b) Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in this article.(c) Periods in which the accused was absent from territory in which the state has the authority to apprehend him or her, or in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this article.(d) When the United States is at war, the running of any statute of limitations applicable to any offense under this article:(1) Involving fraud or attempted fraud against the United States, any state, or any agency of either in any manner, whether by conspiracy or not;(2) Committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the United States or any state; or(3) Committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or government agency;is suspended until two years after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.(e)(1) If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations:(A) Has expired or will expire.(B) Will expire within one hundred eighty days after the date of dismissal of the charges and specifications,trial and punishment under new charges and specifications are not barred by the statute of limitations if the conditions specified in subdivision (2) are met.(2) The conditions referred to in subdivision (1) are that the new charges and specifications must:(A) Be received by an officer exercising summary court-martial jurisdiction over the command within one hundred eighty days after the dismissal of the charges or specifications; and(B) Allege the same acts or omissions that were alleged in the dismissed charges or specifications or allege acts or omissions that were included in the dismissed charges or specifications.
WV Code § 15-1E-44 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-44. Former Jeopardy

(a) No person may, without his or her consent, be tried a second time 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 article.
WV Code § 15-1E-45 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-45. Pleas of the Accused

(a) If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty.(b) With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event, the proceedings shall continue as though the accused had pleaded not guilty.
WV Code § 15-1E-46 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-46. Opportunity to Obtain Witnesses and Other Evidence

The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence as prescribed by regulations and provided by law. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall apply the principles of law and the rules of courts-martial generally recognized in military criminal cases in the courts of the Armed Forces of the United States, but which may not be contrary to or inconsistent with this article. Process shall run to any part of the United States, or the Territories, Commonwealths, and possessions, and may be executed by civil officers as prescribed by the laws of the place where the witness or evidence is located or of the United States.
WV Code § 15-1E-47 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-47. Refusal to Appear or Testify

(a) Any person not subject to this article who:(1) Has been duly subpoenaed to appear as a witness or to produce books and records before a court-martial or court of inquiry, 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 a criminal court of the state; and(3) Willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce; may be punished by the military court in the same manner as a criminal court of the state.(b) The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses.
WV Code § 15-1E-48 (2021)
2021 West Virginia Code|Chapter 15. Public Safety|Article 1E. Code of Military Justice|§15-1E-48. Contempts

A military judge or summary court-martial officer 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.(1) A person subject to this article may be punished for contempt by confinement not to exceed thirty days or a fine of $100, or both.(2) A person not subject to this article may be punished for contempt by a military court in the same manner as a criminal court of the state.