Section 400.875  Voting By the Court-Martial

a)         Voting and Ruling

1)         Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot.  The junior member of the court shall count the votes.  The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.

2)         The 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 is final and constitutes the ruling of the court.  However, the military judge may change the ruling at any time during the trial.  Unless the ruling is final, if any member objects to the ruling, the court shall be cleared and closed and the question decided by a voice vote as provided in Code Section 52, beginning with the junior in rank.

3)         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:

A)        the accused must be presumed to be innocent until his or her guilt is established by legal and competent evidence beyond reasonable doubt;

B)        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;

C)        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

D)        the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the State.

4)         Subsections (a)(1), (2) and (3) 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 an appropriate sentence.  The military judge of such a court-martial shall make a general finding and shall in addition, on request, make special findings as provided in RCM 918(b).  If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear in that document.  (Code Section 51) The military judge may give any instructions necessary to clarify the members' questions after the conclusions of evidence, or to decline to answer any question in the event that response implicates inadmissible evidence.

5)         Included Offenses.  Members shall not vote on a lesser included offense unless a finding of not guilty of the offense charged has been reached.  If a finding of not guilty of an offense charged has been reached, the members shall vote on each included offense on which they have been instructed, in order of severity beginning with the most severe.  The members shall continue the vote on each included offense on which they have been instructed until a finding of guilty results or findings of not guilty have been reached as to each offense.

b)         Procedure for Voting

1)         Order.  Each specification shall be voted on separately before the corresponding charge.  The order of voting on several specifications under a charge or on several charges shall be determined by the president unless a majority of the members object.

2)         Counting Votes.  The junior member shall collect the ballots and count the votes.  The president shall check the count and inform the other members of the result.

c)         Number of Votes Required

1)         No person may be convicted of an offense except as provided in Code Section 45(b) or by the concurrence of ⅔ of the members present at the time the vote is taken.

2)         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 any lesser vote that indicates the reconsideration is not opposed by the number of votes required for that finding or sentence.  A tie vote on a challenge disqualifies the member challenged.  A tie vote 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. (Code Section 52)

3)         Acquittal.  If fewer than ⅔ of the members present vote for a finding of guilty, a finding of not guilty has resulted as to the charge or specification on which the vote was taken.

d)         Court to Announce Action  

1)         A court-martial shall announce its findings and sentence to the parties as soon as determined. (Code Section 53)

2)         The military judge may take such actions as it deems reasonably necessary to secure the courtroom and safety of persons within the courtroom prior to, and after, the announcement of court-martial findings.