10-U.S.C.-838
§838 – Art. 38. Duties of Trial Counsel and Defense Counsel
Pathway
Title 10 > Subtitle A > Part II > Chapter 47 > Subchapter VII > Section 838
Details
- Reference: Section 838
- Legend: §838 – Art. 38. Duties of Trial Counsel and Defense Counsel
- USCode Year: 2013
Provision Content
(a) The trial counsel of a general or special court-martial shall prosecute in the name of the United States, 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 his defense before a general or special court-martial or at an investigation under section 832 of this title (article 32) as provided in this subsection.
(2) The accused may be represented by civilian counsel if provided by him.
(3) The accused may be represented—
(A) by military counsel detailed under section 827 of this title (article 27); or
(B) by military counsel of his own selection if that counsel is reasonably available (as determined under regulations prescribed 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 his own selection under paragraph (3)(B), any military counsel detailed under paragraph (3)(A) 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 827 of this title (article 27) to detail counsel, in his sole discretion—
(A) may detail additional military counsel as assistant defense counsel; and
(B) if the accused is represented by military counsel of his own selection under paragraph (3)(B), may approve a request from the accused that military counsel detailed under paragraph (3)(A) act as associate defense counsel.
(7) The Secretary concerned shall, by regulation, define reasonably available for the purpose of paragraph (3)(B) and establish procedures for determining whether the military counsel selected by an accused under that paragraph is reasonably available. Such regulations may not prescribe any limitation based on the reasonable availability of counsel solely on the grounds that the counsel selected by the accused is from an armed force other than the armed force of which the accused is a member. To the maximum extent practicable, such regulations shall establish uniform policies among the armed forces while recognizing the differences in the circumstances and needs of the various armed forces. The Secretary concerned shall submit copies of regulations prescribed under this paragraph to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.
(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 he determines should be considered in behalf of the accused on review (including any objection to the contents of the record which he considers appropriate);
(2) may assist the accused in the submission of any matter under section 860 of this title (article 60); and
(3) may take other action authorized by this chapter.
(d) An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he is qualified to be a trial counsel as required by section 827 of this title (article 27), perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel of the court. An assistant trial counsel of a special court-martial may perform any duty of the trial counsel.
(e) An assistant defense counsel of a general or special court-martial may, under the direction of the defense counsel or when he is qualified to be the defense counsel as required by section 827 of this title (article 27), perform any duty imposed by law, regulation, or the custom of the service upon counsel for the accused.
(Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L. 90–632, §2(14), Oct. 24, 1968, 82 Stat. 1338; Pub. L. 97–81, §4(b), Nov. 20, 1981, 95 Stat. 1088; Pub. L. 98–209, §3(e), Dec. 6, 1983, 97 Stat. 1394; Pub. L. 104–106, div. A, title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 106–65, div. A, title X, §1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 113–66, div. A, title XVII, §1702(c)(3)(C), Dec. 26, 2013, 127 Stat. 957.)
Amendment of Subsection (b)(1)
Pub. L. 113–66, div. A, title XVII, §1702(c)(3)(C), (d)(1), Dec. 26, 2013, 127 Stat. 957, 958, provided that, effective one year after Dec. 26, 2013, and applicable with respect to offenses committed under this chapter on or after that effective date, subsection (b)(1) of this section is amended by striking an investigation under section 832 and inserting a preliminary hearing under section 832. See 2013 Amendment note below.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 838(a) 838(b) 838(c) |
50:613(a). 50:613(b). 50:613(c). |
May 5, 1950, ch. 169, §1 (Art. 38), 64 Stat. 120. |
| 838(d) | 50:613(d). | |
| 838(e) | 50:613(e). |
In subsection (b), the word has is substituted for the words shall have. The word under is substituted for the words pursuant to. The word duly is omitted as surplusage. The words detailed and who were detailed are substituted for the word appointed, since the filling of the position involved is not appointment to an office in the constitutional sense.
In subsection (c), the word considers is substituted for the words may deem.
Amendments
2013—Subsec. (b)(1). Pub. L. 113–66 substituted a preliminary hearing under section 832 for an investigation under section 832.
1999—Subsec. (b)(7). Pub. L. 106–65 substituted and the Committee on Armed Services for and the Committee on National Security.
1996—Subsec. (b)(7). Pub. L. 104–106 substituted Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives for Committees on Armed Services of the Senate and House of Representatives.
1983—Subsec. (b)(6). Pub. L. 98–209, §3(e)(1), substituted the person authorized under regulations prescribed under section 827 of this title (article 27) to detail counsel for a convening authority.
Subsec. (b)(7). Pub. L. 98–209, §3(e)(2), inserted provision that such regulations may not prescribe any limitation based on the reasonable availability of counsel solely on the grounds that the counsel selected by the accused is from an armed force other than the armed force of which the accused is a member.
Subsec. (c). Pub. L. 98–209, §3(e)(3), designated existing provisions as par. (1), made minor changes in phraseology and punctuation, and added pars. (2) and (3).
1981—Subsec. (b). Pub. L. 97–81 revised subsec. (b) by dividing its provisions into seven numbered paragraphs and inserted provisions relating to the right to counsel at an investigation under section 832 of this title (article 32), authorizing the promulgation of regulations relating to the reasonable availability of military counsel, and authorizing the detailing of additional military counsel for the accused under specified circumstances.
1968—Subsec. (b). Pub. L. 90–632 substituted military judge or by the president of a court-martial without a military judge for president of the court.
Effective Date of 2013 Amendment
Amendment by Pub. L. 113–66 effective one year after Dec. 26, 2013, and applicable with respect to offenses committed under this chapter on or after that effective date, see section 1702(d)(1) of Pub. L. 113–66, set out as a note under section 802 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 98–209 effective first day of eighth calendar month after Dec. 6, 1983, but not to affect the designation or detail of a military judge or military counsel to a court-martial before that date, see section 12(a)(1), (2) of Pub. L. 98–209, set out as a note under section 801 of this title.
Effective Date of 1981 Amendment
Amendment by Pub. L. 97–81 to take effect at end of 60-day period beginning on Nov. 20, 1981, and to apply to trials by courts-martial in which all charges are referred to trial on or after that date, see section 7(a) and (b)(4) of Pub. L. 97–81, set out as an Effective Date note under section 706 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90–632 effective on first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.
U.S. Encyclopedia of Law Coverage
10-U.S.C.-838 in the Legal Encyclopedia: General Military Law
In this entry about 10-U.S.C.-838, find legal reference material, bibliographies and premiere content related to general military law in the American Encyclopedia of Law, presenting a comprehensive view of the United States general military law-specific issues, written by authorities in the field.
10-U.S.C.-876A in the Legal Encyclopedia: Uniform Code of Military Justice
In this entry about 10-U.S.C.-876A, find legal reference material, bibliographies and premiere content related to uniform code of military justice in the American Encyclopedia of Law, presenting a comprehensive view of the United States uniform code of military justice-specific issues, written by authorities in the field.
10-U.S.C.-822 in the Legal Encyclopedia: Justice
In this entry about 10-U.S.C.-822, find legal reference material, bibliographies and premiere content related to justice in the American Encyclopedia of Law, presenting a comprehensive view of the United States justice-specific issues, written by authorities in the field.
10-U.S.C.-830 in the Legal Encyclopedia: Enlistments
In this entry about 10-U.S.C.-830, find legal reference material, bibliographies and premiere content related to enlistments in the American Encyclopedia of Law, presenting a comprehensive view of the United States enlistments-specific issues, written by authorities in the field.
Leave a Reply