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2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 20 - Jurisdiction of Summary Courts-Martial

Article 20. Jurisdiction of summary courts-martial.
(a) Summary courts-martial shall have jurisdiction to try persons subject to this code, except officers, cadets, candidates and midshipmen, for any offense made punishable by this code under such limitations as the commander-in-chief may prescribe.
(b) No person with respect to whom summary courts-martial have jurisdiction shall be brought to trial before a summary court-martial if that person objects thereto. If objection to trial by summary court-martial is made by an accused, trial by special or general court-martial may be ordered, as may be appropriate. Summary courts-martial may, under such limitations as the commander-in-chief may prescribe, adjudge any punishment not forbidden by this code except dismissal, dishonorable or bad-conduct discharge, confinement for more than 1 month, restriction to specified limits for more than 2 months, or forfeiture of more than 2/3 of 1 month's pay.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 22 - Who May Convene General Courts-Martial

Article 22. Who may convene general courts-martial.
(a) General courts-martial may be convened by the:
(1) commander-in-chief;
(2) adjutant general;
(3) commanding officer of a force of the state military forces, including the air component commander or land component commander;
(4) commanding officer of a division or a separate brigade; or
(5) commanding officer of a separate wing.
(b) If a commanding officer is an accuser, the court shall be convened by superior competent authority and may, in any case, be convened by such superior authority if considered desirable by that authority.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 23 - Who May Convene Special Courts-Martial

Article 23. Who may convene special courts-martial.
(a) Special courts-martial may be convened by:
(1) any person who may convene a general court-martial;
(2) the commanding officer of a garrison, fort, post, camp, station, air national guard base or naval base or station;
(3) the commanding officer of a brigade, regiment, detached battalion or corresponding unit of the army;
(4) the commanding officer of a wing, group, separate squadron or corresponding unit of the air force; or
(5) the commanding officer or officer in charge of any other command when empowered by the adjutant general.
(b) If an officer authorized under subsection (a) to convene special courts-martial is an accuser, the court shall be convened by superior competent authority and may, in any case, be convened by such superior authority if considered desirable by that authority.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 24 - Who May Convene Summary Courts-Martial

Article 24. Who may convene summary courts-martial.
(a) Summary courts-martial may be convened by:
(1) a person who may convene a general or special court-martial;
(2) the commanding officer of a detached company or other detachment, or corresponding unit of the army;
(3) the commanding officer of a detached squadron or other detachment, or corresponding unit of the air force; or
(4) the commanding officer or officer in charge of any other command when empowered by the adjutant general.
(b) When only 1 commissioned officer is present with a command or detachment, that officer shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases. Summary courts-martial may, however, be convened in any case by superior competent authority if considered desirable by that authority.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 25 - Who May Serve on Courts-Martial

Article 25. Who may serve on courts-martial.
(a) A commissioned officer of the state military forces shall be eligible to serve on all courts-martial for the trial of a person subject to this code.
(b) A warrant officer of the state military forces shall be eligible to serve on general and special courts-martial for the trial of a person subject to this code, other than a commissioned officer.
(c) An enlisted member of the state military forces who is not a member of the same unit as the accused shall be eligible to serve on general and special courts-martial for the trial of an enlisted member subject to this code, but that member shall serve as a member of a court only if, before the conclusion of a session called by the military judge under subsection (a) of article 39 prior to trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it. After such a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least 1/3 of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why the enlisted members could not be obtained. For purposes of this article, ''unit'' shall mean a 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 1 of them.
(d) No person subject to this code may be tried by a court-martial if a member of that court-martial is junior to the accused in rank or grade, unless non-junior members cannot be obtained on account of physical conditions or military exigencies.
(e) When convening a court-martial, the convening authority shall detail as members thereof such members of the state military forces as, in the convening authority's opinion, are best qualified for the duty by reason of age, education, training, experience, length of service and judicial temperament. No member of the state military forces is eligible to serve as a member of a general or special court-martial if that member is the accuser, a witness or has acted as investigating officer or as counsel in the same case.
(f) 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. The convening authority may delegate the authority under this subsection to a judge advocate or to any other principal assistant.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 26 - Military Judge of a General or Special Court-Martial

Article 26. Military judge of a general or special court-martial.
(a) A military judge shall be detailed to each general and special court-martial. The military judge shall preside over each open session of the court-martial to which the military judge has been detailed.
(b) A military judge shall be:
(1) an active or retired commissioned officer of an organized state military force;
(2) a member in good standing of the bar of the highest court of a state or a member of the bar of a federal court for not less than 5 years; and
(3) certified as qualified for duty as a military judge by the senior force judge advocate which is the same force as the accused.
(c) If a military judge is not a member of the bar of the highest court of the commonwealth, the military judge shall be considered admitted pro hac vice, subject to filing a certificate with the senior force judge advocate of the same force as the accused, setting forth the qualifications provided in subsection (b).
(d) The military judge of a general or special court-martial shall be designated by the senior force judge advocate of the same force as the accused, or a designee, for detail by the convening authority. Neither the convening authority nor a staff member of the convening authority shall prepare or review a report concerning the effectiveness, fitness or efficiency of the military judge so detailed, which relates to performance of duty as a military judge.
(e) No person shall act as military judge in a case if that person is the accuser, a witness or has acted as investigating officer or counsel in the same case.
(f) The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel and defense counsel, nor vote with the members of the court.
(g) A military judge need not be a member of the same military force or the same branch of the convening authority or accused.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 27 - Detail of Trial Counsel and Defense Counsel

Article 27. Detail of trial counsel and defense counsel.
(a)(1) For each general and special court-martial, the authority convening the court shall detail trial counsel, defense counsel and such assistants as are appropriate.
(2) A person who has acted as investigating officer, military judge, witness or court member in a case may not act later as trial counsel, assistant trial counsel or, unless expressly requested by the accused, defense counsel or assistant or associate defense counsel in the same case. A person who has acted for the prosecution may not act later in the same case for the defense. A person who has acted for the defense may not act later in the same case for the prosecution.
(b) Except as provided in subsection (c), trial counsel or defense counsel detailed for a general or special court-martial shall be:
(1) a judge advocate, as defined in article 1; and
(2) in the case of trial counsel, a member in good standing of the bar of the highest court of the state where the court-martial is held.
(c) If defense counsel is not a member of the bar of the highest court of the commonwealth, the defense counsel shall be deemed admitted pro hac vice, subject to filing a certificate with the military judge setting forth the qualifications that counsel is:
(1) a commissioned officer of the armed forces of the United States or a component thereof; and
(2) a member in good standing of the bar of the highest court of a state; and
(3) certified as a judge advocate in the judge advocate general's corps of the army, air force, navy or the marine corps; or
(4) a judge advocate, as defined in article 1.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 28 - Detail or Employment of Reporters and Interpreters

Article 28. Detail or employment of reporters and interpreters.
Under such regulations as may be prescribed, 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 and testimony taken before that court and may detail or employ interpreters who shall interpret for the court.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 29 - Absent and Additional Members

Article 29. Absent and additional members.
(a) No member of a general or special court-martial may be absent or excused after the court has been assembled for the trial of the accused unless the member is excused as a result of a challenge, or by the military judge for physical disability or other good cause or 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 5 members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than 5 members. The trial may proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the court in the presence of the military judge, the accused and counsel for both sides.
(c) Whenever a special court-martial, other than a special court-martial composed of a military judge only, is reduced below 3 members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than 3 members. The trial shall proceed with the new members present as if no evidence had been introduced previously at the trial, unless a verbatim record of the evidence previously introduced before the members of the court or a stipulation thereof is read to the court in the presence of the military judge, the accused and counsel for both sides.
(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, as a result of a challenge or for other good cause, the trial shall proceed, subject to any applicable conditions of clause (B) of paragraph (1) or clause (B) of paragraph (2) of article 16, after the detail of a new military judge as if no 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.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 30 - Charges and Specifications

Article 30. Charges and specifications.
(a) Charges and specifications shall be signed by a person subject to this code under oath before a commissioned officer authorized by subsection (a) of article 136 to administer oaths and shall state:
(1) that the signer has personal knowledge of, or has investigated, the matters set forth therein; and
(2) that they are true in fact to the best of the signer's knowledge and belief.
(b) Upon the referring 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 as soon as practicable.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 31 - Compulsory Self-Incrimination Prohibited

Article 31. Compulsory self-incrimination prohibited.
(a) A person subject to this code shall not compel a person to incriminate himself or herself or to answer a question the answer to which may tend to incriminate that person.
(b) A person subject to this code shall not interrogate or request a statement from an accused or a person suspected of an offense without first informing that person of the nature of the accusation and advising that person that the person does not have to make any statement regarding the offense of which the person is accused or suspected and that any statement made by the person may be used as evidence against the person in a trial by court-martial.
(c) A person subject to this code shall not compel a person to make a statement or produce evidence before a military court if the statement or evidence is not material to the issue and may tend to degrade the person.
(d) No statement obtained from a person in violation of this article or through the use of coercion, unlawful influence or unlawful inducement may be received in evidence against the person in a trial by court-martial.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 33 - Forwarding of Charges

Article 33. Forwarding of charges.
When a person is held for trial by general court-martial, the commanding officer shall, not later than 8 calendar days after the accused is ordered into arrest or confinement, if practicable, forward 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.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 34 - Advice of Judge Advocate and Reference for Trial

Article 34. Advice of judge advocate and reference for trial.
(a) Before directing the trial of a 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 code;
(2) the specification is warranted by the evidence indicated in the report of investigation under article 32 of this code, 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.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 35 - Service of Charges

Article 35. Service of charges.
The trial counsel shall serve or caused to be served upon the accused a copy of the charges. A person shall not, against that person's objection, be brought to trial before a general court-martial case before 10 days after the service of charges upon the accused, or in a special court-martial, before 6 days after the service of charges upon the accused.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 36 - Commander-in-Chief or the Adjutant General May Prescribe Rule

Article 36. Commander-in-chief or the adjutant general may prescribe rules.
Pretrial, trial and post-trial procedures, including modes of proof, for courts-martial cases arising under this code, and for courts of inquiry, may be prescribed by the commander-in-chief 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 code.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 37 - Unlawfully Influencing Action of Court

Article 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, shall censure, reprimand or admonish the court or a 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 code shall attempt to coerce or, by any unauthorized means, influence the action of a court-martial or court of inquiry or a member thereof, in reaching the findings or sentence in a case, or the action of any convening, approving, or reviewing authority with respect to their judicial acts. 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, 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 to determine 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 code shall, 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 for the accused because of zealous representation before a court-martial.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 38 - Duties of Trial Counsel and Defense Counsel

Article 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 bar of the commonwealth and shall prosecute in the name of the commonwealth, 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 article 32 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 article 27; or
(B) by military counsel of the accused's own selection if that counsel is reasonably available as determined under paragraph (7).
(4) If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (3) shall act as associate counsel unless excused at the request of the accused.
(5) Except as provided under paragraph (6), if the accused is represented by military counsel of the accused's own selection under clause (B) of paragraph (3), any military counsel detailed under clause (A) of paragraph (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 article 27 of this code 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 clause (B) of paragraph (3), may approve a request from the accused that military counsel detailed under clause (A) of paragraph (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 article 60 of this code; and
(3) may take other action authorized by this code.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 39 - Sessions

Article 39. Sessions.
(a) At any time after the service of charges that have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to article 35, call the court into session without the presence of the members for the purpose of:
(1) hearing and determining motions raising defenses or objections that are capable of determination without trial of the issues raised by a plea of not guilty;
(2) hearing and ruling upon any matter that may be ruled upon by the military judge under this code, 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 that does not require the presence of the members of the court under this code. 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..
(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 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.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 41 - Challenges

Article 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 1 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 article 16, all parties shall, notwithstanding article 29, 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 3 peremptory challenges 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 article 16, the parties shall, notwithstanding article 29, 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 3 peremptory challenges against members not previously subject to peremptory challenge.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 42 - Oaths or Affirmations

Article 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.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 43 - Statute of Limitations

Article 43. Statute of limitations.
(a) A person charged with absent without leave or missing movement may be tried and punished at any time without limitation.
(b)(1) Except as otherwise provided in this article, a person charged with an offense shall not be liable to be tried by court-martial if the offense was committed more than 6 years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.
(2) A person charged with an offense shall not be liable to be punished under article 15 if the offense was committed more than 2 years before the imposition of punishment.
(c) 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.
(d) Periods in which the accused is absent from territory in which the United States has the authority to apprehend the accused, 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.
(e) When the United States is at war or when the commander-in-chief declares a state of emergency in accordance with state law, the running of a statute of limitations applicable to any offense under this chapter is suspended until 3 years after the termination of hostilities as proclaimed by the president of the United States, by a joint resolution of congress or by the commander-in-chief for offenses:
(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 that 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.
(f) If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations has expired or will expire within 180 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 new charges and specifications:
(1) are received by an officer exercising summary court-martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications; and
(2) 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.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 44 - Former Jeopardy

Article 44. Former jeopardy.
(a) No person shall, without the person's 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 for the purposes of this article until the finding of guilty has become final after review of the case has been fully completed.
(c) A proceeding that, 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 shall be considered to be a trial in the sense of this article.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 45 - Pleas of the Accused

Article 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.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 46 - Opportunity to Obtain Witnesses and Other Evidence

Article 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 code. 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.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 47 - Refusal to Appear or Testify

Article 47. Refusal to appear or testify.
(a) Any person not subject to this code may be punished by the military court in the same manner as a criminal court of the state if the person:
(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.
(b) The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 48 - Contempt

Article 48. Contempt.
(a) 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.
(b) A person subject to this code may be punished for contempt by confinement not to exceed 30 days or a fine of $100 or both.
(c) A person not subject to this code may be punished for contempt by a military court in the same manner as a criminal court of the state.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 49 - Depositions

Article 49. Depositions.
(a) At any time after charges have been signed as provided in article 30, 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 insistence 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 100 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.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 50 - Admissibility of Records of Courts of Inquiry

Article 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.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 50a - Defense of Lack of Mental Responsibility

Article 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 article 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) 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 article 52, 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.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 51 - Voting and Rulings

Article 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 article 52, 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 the accused's 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 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) 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 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.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 52 - Number of Votes Required

Article 52. Number of votes required.
(a) No person may be convicted of an offense except as provided in subsection (b) of article 45 or by the concurrence of all 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 that 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 in favor of the accused. A tie vote on any other question is a determination in favor of the accused.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 54 - Record of Trial

Article 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 the military judge's 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 the trial counsel's 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 that 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; and
(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.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 55 - Cruel and Unusual Punishments Prohibited

Article 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 code. The use of irons, single or double, except for the purpose of safe custody, is prohibited.
2023 Massachusetts General Laws › Part I - Administration of the Government › Title V - Militia › Chapter 33a - Massachusetts Code of Military Justice › Section 56 - Maximum Limits

Article 56. Maximum limits.
The punishment that a court-martial may direct for an offense may not exceed such limits as prescribed by this code, but in no instance may a sentence exceed more than 10 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 1 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. The limits of punishment for violations of the punitive articles prescribed herein shall be as prescribed by the manual for courts-martial of the commonwealth in effect at the time of the offense, but in no instance shall any punishment exceed 10 years confinement.