History: L. 1972, ch. 203, § 48-2701; July 1.
(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 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 duty, no person subject to this code may in preparing any such report:
(1) Consider or evaluate the performance of duty of any such member as a member, military judge or trial counsel of a court-martial; or
(2) give a less favorable rating or evaluation of any member of the state military forces because of the zeal with which such member as counsel represented any accused before a court-martial. This subsection is not applicable to evaluations made by the judge advocate general of the performance of personnel under such judge advocate general's supervision.
History: L. 1972, ch. 203, § 48-2702; L. 1988, ch. 191, § 23; July 1.
(b) The accused has the right to be represented in the accused's defense before a general or special court-martial by civilian counsel if provided by the accused, by military counsel of the accused's own selection if reasonably available or by the defense counsel detailed under K.S.A. 48-2505 and amendments thereto. Should the accused have counsel of the accused's own selection, the defense counsel and assistant defense counsel, if any, who were detailed shall, if the accused so desires, act as the accused's associate counsel; otherwise they shall be excused by the military judge.
(c) In every court-martial proceeding, the defense counsel may, in the event of conviction, forward for attachment to the record of proceedings a brief of such matters the defense counsel feels should be considered in behalf of the accused on review, including any objection to the contents of the record which the defense counsel considers appropriate.
(d) An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when such assistant trial counsel is qualified to be a trial counsel as required by K.S.A. 48-2505 and amendments thereto, perform any duty imposed by law, regulation or the custom of the service upon the trial counsel of the court.
(e) An assistant defense counsel of a general court-martial may, under the direction of the defense counsel or when such assistant defense counsel is qualified to be the defense counsel as required by K.S.A. 48-2505 and amendments thereto, perform any duty imposed by law, regulation or the custom of the service upon counsel for the accused.
History: L. 1972, ch. 203, § 48-2703; L. 1988, ch. 191, § 24; July 1.
(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 code, whether or not the matter is appropriate for later consideration or decision by the members of the court;
(3) if permitted by regulations of the governor, holding the arraignment and receiving the pleas of the accused; and
(4) performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to K.S.A. 48-2701 and which does not require the presence of the members of the court. These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made 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, in cases in which a military judge has been detailed to the court, the military judge.
History: L. 1972, ch. 203, § 48-2704; July 1.
History: L. 1972, ch. 203, § 48-2705; L. 1988, ch. 191, § 25; July 1.
(b) Each accused and the trial counsel is entitled to one peremptory challenge, but the military judge may not be challenged except for cause.
History: L. 1972, ch. 203, § 48-2706; L. 1988, ch. 191, § 26; July 1.
(b) Each witness before a military court shall be examined on oath or affirmation.
History: L. 1972, ch. 203, § 48-2707; L. 1988, ch. 191, § 27; July 1.
(b) Except as otherwise provided in this section, a person charged with desertion or with the offense punishable under K.S.A. 48-3040 and amendments thereto is not liable to be tried by court-martial if the offense was committed more than three years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.
(c) Except as otherwise provided in this section, a person charged with any offense is not liable to be tried by court-martial or punished under K.S.A. 48-2301 and amendments thereto if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under K.S.A. 48-2301 and amendments thereto.
(d) Periods in which the accused was absent from territory in which the state has the authority to apprehend the accused, or in the custody of civil authorities, or in the hands of a hostile force, shall be excluded in computing the period of limitation prescribed in this section.
History: L. 1972, ch. 203, § 48-2708; L. 1988, ch. 191, § 28; July 1.
(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 section.
History: L. 1972, ch. 203, § 48-2709; July 1.
(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, by a court-martial without a military judge or summary court, a finding of guilty of the charge or specification may, if permitted by the regulations of the governor, be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to the announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.
History: L. 1972, ch. 203, § 48-2710; L. 1988, ch. 191, § 29; July 1.
(b) The military judge of a court-martial or a summary court officer may:
(1) Issue a warrant for the arrest of any accused person who having been served with a warrant and a copy of the charges, disobeys a written order by the convening authority to appear before the court;
(2) issue subpoenas duces tecum and other subpoenas; and
(3) enforce by attachment the attendance of witnesses and the production of books and papers.
History: L. 1972, ch. 203, § 48-2711; L. 1988, ch. 191, § 30; July 1.
(1) Has been duly subpoenaed to appear as a witness or to produce books and records before a military court 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 the district courts 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; is guilty of an offense against the state constituting a class C misdemeanor.
(b) Upon the certification of the facts under subdivision (a) hereof by the military judge or summary court officer to the county attorney of the county where the offense occurred, the county attorney shall prosecute as if the offense were specifically included in the Kansas criminal code.
(c) The fees and mileage of witnesses shall be advanced or paid in the same amount and to the same extent as witnesses under the Kansas criminal code.
History: L. 1972, ch. 203, § 48-2712; L. 1988, ch. 191, § 31; July 1.
(b) Any person not subject to this code who engages in conduct described in subdivision (a) hereof is guilty of an offense against the state constituting a class C misdemeanor and the facts may be certified and prosecution instituted as provided in and contemplated by subsection (b) of K.S.A. 48-2712.
History: L. 1972, ch. 203, § 48-2713; July 1.
(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 audio tapes, video tapes or similar materials, may be played in evidence before any court-martial or in any proceeding before a court of inquiry, if it appears that:
(1) The witness resides or is beyond the state in which the court, commission or board is ordered to sit, or beyond 100 miles from the place of trial or hearing;
(2) the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability 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) the present whereabouts of the witness is unknown.
History: L. 1972, ch. 203, § 48-2714; L. 1988, ch. 191, § 32; July 1.
(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 or a military board.
History: L. 1972, ch. 203, § 48-2715; July 1.
(b) The military judge, and, except for questions of challenge, the president of a court-martial without a 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, or by the president of a court-martial without a military judge upon any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court. However, the military judge, or the president of a court-martial without a 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 K.S.A. 48-2717 and amendments thereto 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 that:
(1) The accused must be presumed to be innocent until guilt is established by legal and competent evidence beyond reasonable doubt;
(2) 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) 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) the burden of proof of establishing 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 and impose 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.
History: L. 1972, ch. 203, § 48-2716; L. 1988, ch. 191, § 33; July 1.
(b) All sentences shall be determined by the concurrence of 2/3 of the members present at the time that the vote is taken.
(c) 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 a lesser vote which indicates a different result would be obtained. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion for a finding of not guilty or 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.
History: L. 1972, ch. 203, § 48-2717; L. 1988, ch. 191, § 34; July 1.
History: L. 1972, ch. 203, § 48-2718; July 1.
(b) Each special and summary court-martial shall keep a separate record of the proceedings in each case and the record shall be authenticated in the manner required by such regulations as the governor may prescribe.
(c) (1) A complete record of the proceedings and testimony shall be prepared:
(A) In each general court-martial case in which the sentence adjudged includes a dismissal, a discharge or, if the sentence adjudged does not include a discharge, any other punishment which exceeds that which may otherwise be adjudged by a special court-martial; and
(B) in each special court-martial case in which the sentence adjudged includes a bad-conduct discharge.
(2) In all other court-martial cases, the record shall contain such matters as may be prescribed by regulations of the governor.
(d) A copy of the record of the proceedings of each general court-martial shall be given to the accused as soon as it is authenticated. If a verbatim record of trial by general court-martial is not required by subsection (a), but has been made, the accused may purchase such a record under such regulations as the governor may prescribe.
History: L. 1972, ch. 203, § 48-2719; L. 1988, ch. 191, § 35; July 1.