Subchapter VII · Trial Procedure

Article 39. Sessions

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes Cited by (36)
(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 to section 835 of this title (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 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 chapter, 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;
(4) conducting a sentencing proceeding and sentencing the accused under section 853(b)(1) of this title (article 53(b)(1)); and
(5) performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to section 836 of this title (article 36) and which does not require the presence of the members of the court.
(b) Proceedings under subsection (a) 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 members of the court and without regard to section 829 of this title (article 29). If authorized by regulations of the Secretary concerned, and if at least one defense counsel is physically in the presence of the accused, the presence required by this subsection may otherwise be established by audiovisual technology (such as video teleconferencing technology).
(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.
(d) The findings, holdings, interpretations, and other precedents of military commissions under chapter 47A of this title—
(1) may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial under this chapter; and
(2) may not form the basis of any holding, decision, or other determination of a court-martial.
Cross-referencesCited by 36Cites 5
Cited by

Provisions elsewhere in the Manual whose text cites Article 39. Each link opens the citing provision.

Rules for Courts-Martial
R.C.M. 103(8)(B) — Definitions and rules of construction (39(a))
The military judge when a session of a general or special court-martial is conducted without members under Article 39(a);
R.C.M. 309(d) — Pre-referral judicial proceedings (39(a))
…rule shall be conducted in accordance with the procedures generally applicable to sessions conducted under Article 39(a), and R.C.M. 803.
R.C.M. 602(b)(1) — Service of charges (39(a))
…war, no person may, over objection, be brought to trial by general or special court-martial—including an Article 39(a) session— within the following time periods:
R.C.M. 706(b)(2) — Inquiry into the mental capacity or mental responsibility of the accused (39(a))
…after referral of charges but before beginning of the first session of the court-martial (including any Article 39(a) session) when the military judge is not reasonably available. The military judge may order a mental…
R.C.M. 801(a)(6)(B) — Military judge’s responsibilities; other matters (39(a))
If the military judge determines a hearing under Article 39(a), UCMJ, is necessary, the victim shall be notified of the hearing and afforded the right to be present at the…
R.C.M. 801(e)(1)(C) — Military judge’s responsibilities; other matters (39(a))
Article 39(a) sessions. When required by this Manual or otherwise deemed appropriate by the military judge, interlocutory…
R.C.M. 803 — Court-martial sessions without members under Article 39(a) (39(a))
A military judge who has been detailed to the court-martial may, under Article 39(a), after service of charges, call the court-martial into session without the presence of members. Such…
Discussion under R.C.M. 803 — Court-martial sessions without members under Article 39(a) (39(a))
The purpose of Article 39(a) is “to give statutory sanction to pretrial and other hearings without the presence of the members…
R.C.M. 804(a)(1) — Presence at court-martial proceedings (39(a))
…at the arraignment, the time of the plea, every stage of the trial including sessions conducted under Article 39(a), voir dire and challenges of members, the return of the findings, presentencing proceedings, and post-trial…
R.C.M. 804(a)(3)(A) — Presence at court-martial proceedings (39(a))
Except as provided in R.C.M. 804(a)(3)(B), for Article 39(a) sessions, the military judge may order the accused be present via remote means through the use of…
R.C.M. 804(b)(1) — Presence at court-martial proceedings (39(a))
…of the members, may take place in the absence of the military judge. The military judge may attend Article 39(a) sessions via remote means through the use of audiovisual technology.
R.C.M. 804(c)(1) — Presence at court-martial proceedings (39(a))
…judge alone, no court-martial proceeding may take place in the absence of any detailed member except: Article 39(a) sessions under R.C.M. 803; temporary excusal under R.C.M. 911(b); examination of members under R.C.M.…
R.C.M. 804(d) — Presence at court-martial proceedings (39(a))
…as counsel for a party may not act at a session in the absence of such qualified counsel. For purposes of Article 39(a) sessions and subject to R.C.M. 804(a)(3), the presence of counsel may be satisfied via remote means through…
Discussion under R.C.M. 806(b)(4) — Public trial (39(a))
…proceedings is to minimize the potentially adverse effect of publicity on the trial. For example, a pretrial Article 39(a) hearing at which the admissibility of a confession will be litigated may, under some circumstances, be…
Discussion under R.C.M. 901(d)(4)(D) — Opening session (39(a))
…If the accused elects to waive such conflict, counsel should inform the military judge of the matter at an Article 39(a) session so that an appropriate record can be made.
R.C.M. 903(a)(1) — Accused’s elections on composition of court-martial (39(a))
…court-martial consisting of a military judge alone under Article 16(c)(2)(A), before the end of the initial Article 39(a) session or, in the absence of such a session, before assembly, the military judge shall ascertain, as…
R.C.M. 903(d)(1) — Accused’s elections on composition of court-martial (39(a))
…(a)(1)(A) may be withdrawn by the accused as a matter of right any time before the end of the initial Article 39(a) session, or, in the absence of such a session, before assembly.
Discussion under R.C.M. 904 — Arraignment (39(a))
…upon to plead; the entry of pleas is not part of the arraignment. The arraignment should be conducted at an Article 39(a) session. The accused may not be arraigned at a conference under R.C.M. 802. Once the accused has been…
R.C.M. 905(h) — Motions generally (39(a))
…party. Such motions may be disposed of before arraignment and without a session. Either party may request an Article 39(a) session to present oral argument or have an evidentiary hearing concerning the disposition of written…
R.C.M. 910(g) — Pleas (39(a))
Findings. Findings based on a plea of guilty may be entered immediately upon acceptance of the plea at an Article 39(a) session unless the plea is to a lesser included offense and the prosecution intends to proceed to trial on…
Discussion under R.C.M. 920(c) — Instructions on findings (39(a))
Requests for and objections to instructions should be resolved at an Article 39(a) session. See R.C.M. 803. If an issue has been raised, ordinarily the military judge must instruct on the…
Discussion under R.C.M. 921(d) — Deliberations and voting on findings (39(b))
…opportunity to examine such a writing and to be heard on any instructions the military judge may give. See Article 39(b). The president should not disclose any specific number of votes for or against any finding.
Discussion under R.C.M. 1001(c)(5) — Presentencing procedure (39(a))
…military judge waives the notice requirement under this rule, the military judge may conduct a session under Article 39(a) to ascertain the content of the victim’s anticipated unsworn statement. If the victim intends to submit a…
Discussion under R.C.M. 1004(f)(1) — Capital cases (39(a))
Requests for and objections to instructions should be resolved at an Article 39(a) session. See R.C.M. 801(e)(1)(C), 803. The military judge is not required to give the specific instruction…
R.C.M. 1104(a) — Post-trial motions and proceedings (39(a))
Post-trial Article 39(a) sessions.
R.C.M. 1104(a)(1) — Post-trial motions and proceedings (39(a))
In general. Upon motion of either party or sua sponte, the military judge may direct a post-trial Article 39(a) session at any time before the entry of judgment under R.C.M. 1111 and, when necessary, after a case has…
Discussion under R.C.M. 1104(a)(1) — Post-trial motions and proceedings (39(a))
A post-trial session with members requires calling the court to order, and is not a post-trial Article 39(a) session.
R.C.M. 1104(a)(2) — Post-trial motions and proceedings (39(a))
Purpose. The purpose of post-trial Article 39(a) sessions is to inquire into, and, when appropriate, to resolve any matter that arises after trial that…
R.C.M. 1104(a)(3) — Post-trial motions and proceedings (39(a))
Scope. A military judge at a post-trial Article 39(a) session may reconsider any trial ruling that substantially affects the legal sufficiency of any findings of…
Military Rules of Evidence
Mil. R. Evid. 412(c)(2) — Sex offense cases: The victim's sexual behavior or predisposition (39(a))
…and members, the military judge shall conduct the hearing outside the presence of the members pursuant to Article 39(a). The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1113 and…
Mil. R. Evid. 505(b)(3) — Classified information (39(a))
"In camera hearing" means a session under Article 39(a) from which the public is excluded.
Mil. R. Evid. 505(f)(1) — Classified information (39(a))
…Conference. At any time after referral of charges, any party may move for a pretrial conference under Article 39(a) to consider matters relating to classified information that may arise in connection with the trial.…
Mil. R. Evid. 506(c)(1) — Government information (39(a))
"In camera hearing" means a session under Article 39(a) from which the public is excluded.
Mil. R. Evid. 506(f)(1) — Government information (39(a))
…Conference. At any time after referral of charges, any party may move for a pretrial conference under Article 39(a) to consider matters relating to government information that may arise in connection with the trial.…
Mil. R. Evid. 1101(a) — Applicability of these rules (39(a))
…in this Manual, these rules apply generally to all courts-martial, including summary courts-martial, Article 39(a) sessions, Article 30a proceedings, remands, proceedings in revision, and contempt proceedings other than…
Uniform Code of Military Justice
Art. 35(b)(1) — Service of charges; commencement of trial (39(a))
…general court-martial or a special court-martial (including any session under section 839(a) of this title (article 39(a)) may be held over the objection of the accused—
Article 39 cites

Provisions named in the text of Article 39. Where the cited provision is on this site, the link opens it.