§ 839. Art. 39. Sessions(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) if permitted by regulations of the Secretary concerned, 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 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 videoteleconferencing 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, in cases in which a military judge has been detailed to the court, 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. (Aug. 10, 1956, ch. 1041, 70A Stat. 51; Pub. L. 90–632, § 2(15), Oct. 24, 1968, 82 Stat. 1338; Pub. L. 101–510, div. A, title V, § 541(a), Nov. 5, 1990, 104 Stat. 1565; Pub. L. 109–163, div. A, title V, § 556, Jan. 6, 2006, 119 Stat. 3266; Pub. L. 111–84, div. A, title XVIII, § 1803(a)(2), Oct. 28, 2009, 123 Stat. 2612; Pub. L. 114–328, div. E, title LVII, § 5222, Dec. 23, 2016, 130 Stat. 2909.) Amendment of Subsections (a) and (c)

Pub. L. 114–328, Dec. 23, 2016, div. E, title LVII, § 5222, title LXIII, § 5542, Dec. 23, 2016, 130 Stat. 2909, 2967, made amendments to this section effective on the date designated by the President, not later than the first day of the first calendar month beginning two years after Dec. 23, 2016, with implementing regulations prescribed by the President not later than one year after Dec. 23, 2016, and with provisions relating to applicability to various situations. After such effective date, this section is amended as follows:

(1) in subsection (a)—

(A) in paragraph (3)—

(i) by striking “if permitted by regulations of the Secretary concerned,”; and

(ii) by striking “and” at the end;

(B) by redesignating paragraph (4) as paragraph (5); and

“(4) conducting a sentencing proceeding and sentencing the accused in non-capital cases unless the accused requests sentencing by members under section 825 of this title (article 25); and”; and

(2) in the second sentence of subsection (c), by striking “, in cases in which a military judge has been detailed to the court,”.

See 2016 Amendment notes below.

Historical and Revision Notes
Revised section	Source (U.S. Code)	Source (Statutes at Large)
839	50:614.	May 5, 1950, ch. 169, § 1 (Art. 39), 64 Stat. 121.

The word “When” is substituted for the word “Whenever”. The words “deliberates or votes” are substituted for the words “is to deliberate or vote”. The word “may” is substituted for the word “shall”. The word “shall” is inserted before the words “be in the presence” for clarity.

Amendments

2016—Subsec. (a)(3). Pub. L. 114–328, § 5222(1)(A), struck out “if permitted by regulations of the Secretary concerned,” before “holding” and “and” after “accused;”.

Subsec. (a)(4), (5). Pub. L. 114–328, § 5222(1)(B), (C), added par. (4) and redesignated former par. (4) as (5).

Subsec. (c). Pub. L. 114–328, § 5222(2), struck out “, in cases in which a military judge has been detailed to the court,” after “the trial counsel, and”.

2009—Subsec. (d). Pub. L. 111–84 added subsec. (d).

2006—Pub. L. 109–163 redesignated concluding provisions of subsec. (a) as subsec. (b), substituted “Proceedings under subsection (a) shall be conducted” for “These proceedings shall be conducted”, inserted at end “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 videoteleconferencing technology).”, and redesignated former subsec. (b) as (c).

1990—Subsec. (a). Pub. L. 101–510 inserted at end “These proceedings may be conducted notwithstanding the number of members of the court and without regard to section 829 of this title (article 29).”

1968—Pub. L. 90–632 added subsec. (a), designated existing provisions as subsec. (b), substituted “military judge” for “law officer”, and struck out provisions authorizing the court after voting on the findings in a general court-martial to request the law officer and the reporter to appear before the court to put the findings in proper form.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on the date designated by the President, not later than the first day of the first calendar month beginning two years after Dec. 23, 2016, with implementing regulations prescribed by the President not later than one year after Dec. 23, 2016, and with provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328, set out as a note under section 801 of this title.

Effective Date of 1990 Amendment

Pub. L. 101–510, div. A, title V, § 541(e), Nov. 5, 1990, 104 Stat. 1565, provided that: “The amendments made by subsections (a) through (d) [amending this section and section 841 of this title] shall apply only to a court-martial convened on or after the date of the enactment of this Act [Nov. 5, 1990].”

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective 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.