History: L. 1972, ch. 203, § 48-2501; July 1.
History: L. 1988, ch. 191, § 17; July 1.
(b) When only one commissioned officer is present with a command or detachment he or she shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases brought before him or her. Summary courts-martial may, however, be convened in any case by superior authority when considered desirable by him or her.
History: L. 1972, ch. 203, § 48-2502; July 1.
(b) Any warrant officer of or on duty with the state military forces is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought before such court for trial.
(c) (1) Any enlisted member of the state military forces who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member who may lawfully be brought before such courts for trial, but such enlisted member shall serve as a member of a court only if before the conclusion of a session called by the military judge under K.S.A. 48-2704 and amendments thereto 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 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 one-third 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 they could not be obtained.
(2) In this section, the word "unit" means any regularly organized body of the state military forces not larger than a company, a squadron, or a body corresponding to one of them.
(d) (1) No person subject to this code may be tried by a court-martial any member of which is junior to such person in rank or grade, unless it cannot be avoided and then only by order of the governor.
(2) When convening a court-martial, the convening authority shall detail as members of the state military forces thereof such members 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 is eligible to serve as a member of a general or special court-martial when such member is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case.
(e) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. Under such regulations as the governor may prescribe, the convening authority may delegate the convening authority's authority under this subsection to the convening authority's staff judge advocate or to any other principal assistant.
History: L. 1972, ch. 203, § 48-2503; L. 1988, ch. 191, § 18; July 1.
(b) A military judge shall be a commissioned officer of the national guard or a retired officer of the reserve components of the armed forces of the United States who is a member of the bar of the supreme court of Kansas and who is certified to be qualified for such duty by the judge advocate general. The judge advocate general may recommend to the adjutant general that the adjutant general order to active duty retired personnel of the United States armed forces who are qualified to act as military judges.
(c) No person is eligible to act as military judge in a case if the person is the accuser or a witness for the prosecution or has acted as investigating officer or a counsel in the same case.
(d) Neither the convening authority nor any member of the convening authority's staff shall prepare or review any report concerning the effectiveness, fitness or efficiency of a military judge which relates to the judge's performance of duty as such. A commissioned officer who is certified to be qualified for duty as a military judge of a court-martial may perform such duties only when such officer is assigned and directly responsible to the judge advocate general and may perform duties of a judicial or nonjudicial nature other than those relating to the primary duty as a military judge of a court-martial when such duties are assigned to such officer by or with the approval of the judge advocate general. 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 may the judge vote with the members of the court.
History: L. 1972, ch. 203, § 48-2504; L. 1988, ch. 191, § 19; July 1.
(2) No person who has acted as investigating officer, military judge or court member in any case may act later as trial counsel, assistant trial counsel or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense, nor may any person who has acted for the defense act later in the same case for the prosecution.
(b) Trial counsel or defense counsel detailed for a general court-martial:
(1) Must be a judge advocate who is a graduate of an accredited law school or is a member of the bar of the highest court of a state; and
(2) must be certified as competent to perform such duties by the judge advocate general of the state military forces.
(c) In the case of a special court-martial:
(1) The accused shall be afforded the opportunity to be represented at the trial by counsel having the qualifications prescribed under subsection (b) unless counsel having such qualifications cannot be obtained on account of physical conditions or military exigencies. If counsel having such qualifications cannot be obtained, the court may be convened and the trial held, but the convening authority shall make a detailed written statement, to be appended to the record, stating why counsel with such qualifications could not be obtained;
(2) if the trial counsel is qualified to act as counsel before a general court-martial, the defense counsel detailed by the convening authority must be a person similarly qualified; and
(3) if the trial counsel is a judge advocate or a member of the bar of the highest court of the state, the defense counsel detailed by the convening authority must be one of the foregoing.
History: L. 1972, ch. 203, § 48-2505; L. 1988, ch. 191, § 20; July 1.
History: L. 1972, ch. 203, § 48-2506; July 1.
(b) Whenever a general court-martial, other than one composed of a military judge only, is reduced below five members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than five 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 three members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than three members. The trial shall proceed with the new members present as if no evidence had previously been introduced 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, if any, and 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 K.S.A. 48-2401 and amendments thereto, 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.
History: L. 1972, ch. 203, § 48-2507; L. 1988, ch. 191, § 21; July 1.