CHAPTER 33-9

ACTIVE SERVICE OF NATIONAL GUARD

33-9-1    Authority of Governor to order active service--Application of other public officials.

33-9-2    Absence of Governor--Authority of National Guard commanders.

33-9-3    Delivery and communication of active service order--Procedure.

33-9-4    Repealed by SL 2012, ch 173, §§ 3 to 5.

33-9-7    Accessories to disobedience--Misdemeanor.

33-9-8    Response to disasters--Suppression of riots--Duty to obey civilian officials.

33-9-9    Injuries in course of riot suppression--Members and magistrates exonerated--Rioters held to answer.

33-9-10    Immunity of commanding officers and members of military forces.

33-9-11    Compensation and expenses during active service.

33-9-12    National Guard Mutual Assistance Compact--Enactment--Text of compact.

33-9-13    State service periods--Rights and benefits.

33-9-14    Claims--Payment.

33-9-15    National Guard Mutual Assistance Counter-drug Activities Compact--Enactment--Text of Compact.

33-9-1. Authority of Governor to order active service--Application of other public officials.

In case of war, insurrection, rebellion, riot, invasion, resistance to the execution of the law of this state or of the United States, or in the event of public disaster or upon application of any marshal of the United States, or the mayor of any first or second class municipality or any sheriff in this state, the Governor may order into active service all or any portion of the national guard.

Source: SL 1887, ch 100, §§ 43, 44; CL 1887, §§ 1959, 1960; SL 1893, ch 117, § 14; SL 1901, ch 176, § 8; RPolC 1903, § 2497; SL 1903, ch 185, § 27; SL 1917, ch 297, § 37; RC 1919, § 10597; SDC 1939, § 41.0149; SL 1951, ch 206; SL 1992, ch 60, § 2.

33-9-2. Absence of Governor--Authority of National Guard commanders.

If the Governor is absent or cannot be immediately communicated with, any civil officer named in § 33-9-1 may, if the civil officer deems the occasion sufficiently urgent, apply electronically, telephonically, or in writing to the commanding officer of any unit of the National Guard, who may, upon approval by the adjutant general, if the danger is great and imminent, order out of the unit such South Dakota National Guard members as the commanding officer deems necessary to the assistance of the civil officer.

Source: SL 1903, ch 185, § 27; SL 1917, ch 297, § 37; RC 1919, § 10597; SDC 1939, § 41.0149; SL 1951, ch 206; SL 2007, ch 187, § 78.

33-9-3. Delivery and communication of active service order--Procedure.

Any order pursuant to § 33-9-1 or 33-9-2 shall be delivered to the commanding officer and immediately communicated by the commanding officer to each subordinate officer. Each company commander receiving the order shall immediately communicate the substance of the order to each member of the company being called to duty. If any such member cannot be found, a notice in writing containing the substance of the order shall be left at the last and usual place of residence of the member with some person of suitable age and discretion, to whom its contents shall be explained.

Source: SL 1903, ch 185, § 27; SL 1917, ch 297, § 37; RC 1919, § 10597; SDC 1939, § 41.0149; SL 1951, ch 206; SL 2007, ch 187, § 79.

33-9-4 to 33-9-6. Repealed by SL 2012, ch 173, §§ 3 to 5.

33-9-7. Accessories to disobedience--Misdemeanor.

Any person who advises or endeavors to persuade any officer or enlisted member of the National Guard to refuse or neglect to appear at such place or obey such orders is guilty of a Class 2 misdemeanor.

Source: SL 1903, ch 185, § 28; SL 1917, ch 297, § 38; RC 1919, § 10598; SDC 1939, § 41.9904; SL 1976, ch 158, § 43-6; SL 2023, ch 109, § 9.

33-9-8. Response to disasters--Suppression of riots--Duty to obey civilian officials.

An armed force may be called out to respond to public disaster resulting from flood, conflagration, or tornado, or for the purpose of suppressing any tumult or riot, or for the purpose of dispersing any group of persons that is acting together by force with intent to commit any felony or to offer violence to persons or property, or that is acting with intent by force or violence to resist or oppose the execution of the laws of this state. Upon arrival at the place of such unlawful, riotous, or tumultuous assembly, the armed force shall obey any orders by the Governor for suppressing the riot or tumult or for dispersing and arresting all persons who are committing any such offenses. The armed force shall also obey any such orders from any judge of a court of record, or from the sheriff of the county, and also any further orders for such purposes from any two of the magistrates or other officers mentioned in this section.

Source: SL 1917, ch 297, § 71; RC 1919, § 10631; SDC 1939, § 41.0179; SL 2007, ch 187, § 83.

33-9-9. Injuries in course of riot suppression--Members and magistrates exonerated--Rioters held to answer.

If the efforts made pursuant to § 33-9-8 by, or at the direction of, any of the magistrates or officers mentioned in § 33-9-8 to disperse any unlawful, riotous, or tumultuous assembly, or to seize and secure the persons who have assembled and have refused to disperse, though the number remaining may be less than twelve, cause any such person or other persons present as spectators or otherwise to be killed or wounded, such magistrates and officers, and all persons acting by their order and under their direction, are held guiltless and fully justified in law. If any of such magistrates or officers or any persons acting by their order or under their direction are killed or wounded, any person who is unlawfully, riotously, and tumultuously assembled is answerable for the death or injury in a court of law.

Source: SL 1917, ch 297, § 71; RC 1919, § 10631; SDC 1939, § 41.0179; SL 2007, ch 187, § 84.

33-9-10. Immunity of commanding officers and members of military forces.

The commanding officer and members of any of the military forces engaged in the suppression of an insurrection, the dispersion of a mob, or the enforcement of the laws, have the same immunity as law enforcement officers.

Source: SDC 1939, § 41.0179; SL 2007, ch 187, § 85.

33-9-11. Compensation and expenses during active service.

In active service pursuant to §§ 33-9-1 to 33-9-3, inclusive, the compensation and expenses of the national guard and claims of the members thereof for injury or illness incurred in line of duty, shall be paid out of any funds in the state treasury not otherwise appropriated.

Source: SDC 1939, § 41.0149; SL 1951, ch 206.

33-9-12. National Guard Mutual Assistance Compact--Enactment--Text of compact.

The National Guard Mutual Assistance Compact is hereby enacted into law and entered into by the State of South Dakota with all other states legally joining therein, in the form substantially as follows:

ARTICLE I. PURPOSE

The purposes of this compact are to:

1.    Provide for mutual aid among the party state in the utilization of the national guard to cope with emergencies.

2.    Permit and encourage a high degree of flexibility in the deployment of national guard forces in interest of efficiency.

3.    Maximize the effectiveness of the national guard in those situations which call for its utilization under the compact.

4.    Provide protection for the rights of national guard personnel when serving in other states on emergency duty.

ARTICLE II. ENTRY INTO FORCE AND WITHDRAWAL

(a) This compact shall enter into force when enacted into law by any two states. Thereafter, this compact shall become effective as to any other state upon its enactment, thereof.

(b) Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until one year after the Governor of the withdrawing state has given notice in writing of such withdrawal to the Governors of all party states.

ARTICLE III. MUTUAL AID

(a) As used in this article:

1.    "Emergency" means an occurrence or condition, temporary in nature, in which police and other public safety officials and locally available national guard forces are, or may reasonably be expected to be, unable to cope with substantial and imminent danger to the public safety.

2.    "Requesting state" means the state whose Governor requests assistance in coping with an emergency.

3.    "Responding state" means the state furnishing aid, or requested to furnish aid.

(b) Upon request of the Governor of a party state for assistance in an emergency, the Governor of a responding state shall have authority under this compact to send without the borders of his state and place under the temporary command of the appropriate national guard or other military authorities of the requesting state all or any part of the national guard forces of his state as he may deem necessary, and the exercise of his discretion in this regard shall be conclusive.

(c) The Governor of a party state may withhold the national guard forces of his state from such use and recall any forces or part or member thereof previously deployed in a requesting state.

(d) Whenever national guard forces of any party state are engaged in another state carrying out the purposes of this compact, the members thereof so engaged shall have the same powers, duties, rights, privileges and immunities as members of national guard forces in such other state. The requesting state shall save members of the national guard forces of responding states harmless from civil liability for acts or omissions in good faith which occur in the performance of their duty while engaged in carrying out the purposes of this compact, whether the responding forces are serving the requesting state within its borders or are in transit to or from such service.

(e) Subject to the provisions of paragraphs (f), (g), and (h) of this article, all liability that may arise under the laws of the requesting state, the responding state, or a third state on account of or in connection with a request for aid, shall be assumed and borne by the requesting state.

(f) Any responding state rendering aid pursuant to this compact shall be reimbursed by the requesting state for any loss or damage to, or expense incurred in the operation of any equipment answering a request for aid, and for the cost of the materials, transportation and maintenance of national guard personnel and equipment incurred in connection with such request: Provided, that nothing herein contained shall prevent any responding state from assuming such loss, damage, expense, or other cost.

(g) Each party state shall provide, in the same amounts and manner as if they were on duty within their state, for the pay and allowances of the personnel of its national guard units while engaged without the state pursuant to this compact and while going to and returning from such duty pursuant to this compact. Such pay and allowances shall be deemed items of expense reimbursable under paragraph (f) by the requesting state.

(h) Each party state providing for the payment of compensation and death benefits to injured members and the representatives of deceased members of its national guard forces in case such members sustain injuries or are killed within their own state, shall provide for the payment of compensation and death benefits in the same manner and on the same terms in case such members sustain injury or are killed while rendering aid pursuant to this compact. Such compensation and death benefits shall be deemed items of expense reimbursable pursuant to paragraph (f) of this article.

ARTICLE IV. DELEGATION

Nothing in this compact shall be construed to prevent the Governor of a party state from delegating any of his responsibilities or authority respecting the national guard, provided that such delegation is otherwise in accordance with law. For purposes of this compact, however, the Governor shall not delegate the power to request assistance from another state.

ARTICLE V. LIMITATIONS

Nothing in this compact shall:

1. Expand or add to the functions of the national guard, except with respect to the jurisdictions within which such functions may be performed.

2. Authorize or permit national guard units to be placed under the field command of any person not having the military or national guard rank or status required by law for the field command position in question.

ARTICLE VI. CONSTRUCTION AND SEVERABILITY

This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the Constitution of any state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the Constitution of any state participating herein, the compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the state affected as to all severable matters.

Source: SL 1969, ch 171, §§ 1, 4; SL 1994, ch 268.

33-9-13. State service periods--Rights and benefits.

In accordance with paragraph (h) of Article III of the compact members of the National Guard Forces of South Dakota shall be deemed to be in state service at all times when engaged pursuant to this compact, and shall be entitled to all rights and benefits provided by the State of South Dakota.

Source: SL 1969, ch 171, § 3.

33-9-14. Claims--Payment.

Upon presentation of a claim therefor by an appropriate authority of a state whose national guard forces have aided the State of South Dakota pursuant to the compact, any liability of South Dakota pursuant to paragraph (f) of Article III of the compact shall be paid out of the general fund of South Dakota.

Source: SL 1969, ch 171, § 2.

33-9-15. National Guard Mutual Assistance Counter-drug Activities Compact--Enactment--Text of Compact.

The National Guard Mutual Assistance Counter-drug Activities Compact is hereby enacted into law and entered into by the State of South Dakota with all other states legally joining therein, in form substantially as follows:

ARTICLE I. PURPOSE

The purposes of this compact are:

(A)    To provide for mutual assistance and support among the party states in the utilization of the national guard in drug interdiction, counter-drug, and demand reduction activities;

(B)    To permit the national guard of this state to enter into mutual assistance and support agreements, on the basis of need, with one or more law enforcement agencies operating within this state for activities within this state, or with a national guard of one or more other states, whether said activities are within or without this state, in order to facilitate and coordinate efficient, cooperative enforcement efforts directed toward drug interdiction, counter-drug activities, and demand reduction;

(C)    To permit the national guard of this state to act as a receiving and responding state as defined within this compact and to ensure the prompt and effective delivery of national guard personnel, assets, and service to agencies or areas that are in need of increased support and presence;

(D)    To permit and encourage a high degree of flexibility in the deployment of national guard forces in the interest of efficiency;

(E)    To maximize the effectiveness of the national guard in those situations which call for its utilization under this compact;

(F)    To provide protection for the rights of national guard personnel when performing duties in other states in counter-drug activities; and

(G)    To ensure uniformity of state laws in the area of national guard involvement in interstate counter-drug activities by incorporating said uniform laws within the compact.

ARTICLE II. ENTRY INTO FORCE AND WITHDRAWAL

(A) This compact shall go into force when enacted into law by any two states. Thereafter, this compact shall become effective as to any other state upon its enactment thereof.

(B) Any party state may withdraw from this compact by enacting a statute repealing the compact, but no such withdrawal may take effect until one year after the Governor of the withdrawing state has given notice in writing of such withdrawal to the governors of all other party states.

ARTICLE III. MUTUAL ASSISTANCE AND SUPPORT

(A) As used in this compact, the following terms mean:

(1)    "Drug interdiction and counter-drug activities," the use of national guard personnel, while not in federal service, in any law enforcement support activities that are intended to reduce the supply or use of illegal drugs in the United States. These activities include, but are not limited to:

(a)    Providing information obtained during either the normal course of military training or operations or during counter-drug activities to federal, state, or local law enforcement officials that may be relevant to a violation of any federal or state law within the jurisdiction of such officials;

(b)    Making available any equipment (including associated supplies or spare parts), base facilities or research facilities of the national guard to any federal, state, or local civilian law enforcement official for law enforcement purposes, in accordance with other applicable law or regulation;

(c)    Providing available national guard personnel to train federal, state, or local civilian law enforcement in the operation and maintenance of equipment, including equipment made available above, in accordance with other applicable law;

(d)    Providing available national guard personnel to operate and maintain equipment provided to federal, state, or local law enforcement officials pursuant to activities defined and referred to in this compact;

(e)    Operating and maintaining equipment and facilities of the national guard or law enforcement agencies used for the purposes of drug interdiction and counter-drug activities;

(f)    Providing available national guard personnel to operate equipment for the detection, monitoring, and communication of the movement of air, land, and sea traffic, to facilitate communications in connection with law enforcement programs, to provide transportation for civilian law enforcement personnel and to operate bases of operations for civilian law enforcement personnel;

(g)    Providing available national guard personnel, equipment, and support for administrative, interpretive, analytic, or other purposes; and

(h)    Providing available national guard personnel and equipment to aid federal, state, and local officials and agencies otherwise involved in the prosecution or incarceration of individuals processed within the criminal justice system who have been arrested for criminal acts involving the use, distribution, or transportation of controlled substances as defined in 21 U.S.C. § 801 et seq. as in effect on July 1, 1993, or otherwise by law, in accordance with other applicable law;

(2)    "Demand reduction," providing available national guard personnel, equipment, support, and coordination to federal, state, local, and civic organizations, institutions, and agencies for the purposes of the prevention of drug abuse and the reduction in the demand for illegal drugs;

(3)    "Requesting state," a state whose governor requested assistance in the area of counter-drug activities;

(4)    "Responding state," a state furnishing assistance, or requested to furnish assistance, in the area of counter-drug activities;

(5)    "Law enforcement agency," a lawfully established federal, state, or local public agency that is responsible for the prevention and detection of crime and the enforcement of penal, traffic, regulatory, game, immigration, postal, customer, or controlled substances laws;

(6)    "Official," an appointed, elected, designated or otherwise duly selected representative or an agency, institution, or organization authorized to conduct those activities for which support is requested;

(7)    "Mutual assistance and support agreement" or "agreement," an agreement between the national guard of this state and one or more law enforcement agencies or between the national guard of this state and the national guard of one or more other states, consistent with the purposes of the compact;

(8)    "Party state," a state that has lawfully enacted this compact; and

(9)    "State," any of the several states of the United States, the District of Columbia, the commonwealth of Puerto Rico, or a territory or possession of the United States;

(B) Upon the request of a governor of a party state for assistance in the area of drug interdiction, counter-drug, and demand reduction activities, the Governor has authority under this compact to send without the border of this state and place under the temporary operational control of the appropriate national guard or other military authorities of the requesting state, for the purpose of providing such requested assistance, all or any part of the national guard forces of this state as he may deem necessary, and the exercise of his discretion in this regard shall be conclusive.

(C) The Governor may, within his discretion, withhold the national guard forces of this state from such use and recall any forces or part or member thereof previously deployed in a requesting state.

(D) The national guard of this state is hereby authorized to engage in counter-drug activities and demand reduction.

(E) The adjutant general of this state, in order to further the purposes of this compact, may enter into a mutual assistance and support agreement with one or more law enforcement agencies operating within this state, including federal law enforcement agencies operating in state, or with the national guard or one or more other party states to provide personnel, assets, and services in the area of counter-drug activities and demand reduction provided that any party to the agreement is not specifically prohibited by law to perform said activities.

(F) The agreement must set forth the powers, rights, and obligations of the parties to the agreement, where applicable, as follows:

(1)    Its duration;

(2)    The organization, composition, and nature of any separate legal entity created thereby;

(3)    The purpose of the agreement;

(4)    The manner of financing the agreement and establishing and maintaining its budget;

(5)    The method to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon such partial or complete termination;

(6)    Provision for administering the agreement, which may include creation of a joint board responsible for such administration;

(7)    The manner of acquiring, holding, and disposing of real and personal property used pursuant to the agreement, if necessary;

(8)    The minimum standards for national guard personnel implementing the provisions of the agreement;

(9)    The minimum insurance required of each party to the agreement, if necessary;

(10)    The chain of command or delegation of authority to be followed by national guard personnel acting under the provisions of the agreement;

(11)    The duties and authority that the national guard personnel of each party state may exercise; and

(12)    Any other necessary and proper matters.

(G) As a condition precedent to an agreement becoming effective under this part, the agreement shall be submitted to and receive the approval of the Office of the Attorney General. The attorney general may delegate his approval authority to the appropriate attorney for the national guard subject to those conditions which he deems appropriate. Said delegation shall be in writing and subject to the following:

(1)    The attorney general, or his agent in the national guard as stated above, shall approve an agreement submitted to him under this part unless he finds that it is not in proper form, does not meet the requirements set forth in this part, or otherwise does not conform to the laws of South Dakota. If the attorney general disapproves an agreement, he shall provide a written explanation to the adjutant general of the national guard; and

(2)    If the attorney general, or his authorized agent as stated above, does not disapprove an agreement within thirty days after its submission to him, it shall be deemed approved by him.

(H) Whenever national guard forces of any party state are engaged in the performance of duties in the area of drug interdiction, counter-drug, and demand reduction activities pursuant to orders, they shall not be held personally liable for any acts or omissions which occur during the performance of such duty.

ARTICLE IV. RESPONSIBILITIES

(A) Nothing in this compact may be construed as a waiver of any benefits, privileges, immunities, or rights otherwise provided for national guard personnel performing duty pursuant to Title 32 of the United States Code, nor shall anything in this compact be construed as a waiver of coverage provided for under the Federal Tort Claims Act. In the event that national guard personnel performing counter-drug activities do not receive rights, benefits, privileges, and immunities otherwise provided for national guard personnel as stated herein, the following provisions apply:

(1)    Whenever national guard forces of any responding state are engaged in another state in carrying out the purposes of this compact, the members thereof so engaged shall have the same power, duties, rights, privileges, and immunities as members of national guard forces of the requesting state. The requesting state shall save and hold members of the national guard forces of this responding state harmless from civil liability, except as otherwise provided herein, for acts or omissions which occur in the performance of those member's duty while engaged in carrying out the purposes of this compact, whether such responding forces are serving the requesting state within the borders of the responding state or are attached to the requesting state for purposes of operational control;

(2)    Subject to the provisions of paragraphs (3), (4), and (5) of this article, all liability that may arise under the laws of the requesting state of this responding state on account of or in connection with a request for assistance or support, shall be assumed and borne by the requesting state;

(3)    If as a responding state, this state is rendering aid or assistance pursuant to this compact, it shall be reimbursed by the requesting state for any loss or damage to, or expense incurred in the operation of, any equipment answering a request for aid, and for the cost of the materials, transportation, and maintenance of national guard personnel and equipment incurred in connection with such request, provided that nothing herein constrained shall prevent any responding state from assuming such loss, damage, expense, or other cost;

(4)    Unless there is a written agreement to the contrary, each party shall provide, in the same amounts and manner as if they were on duty within their state, for pay and allowances of the personnel of its national guard units while engaged without the state pursuant to this compact and while going to and returning from such duty pursuant to this compact; and

(5)    Each party state providing for the payment of compensation and death benefits to injured members and the representatives of deceased members of its national guard forces if such members sustain injuries or are killed within their own state, providing such requested assistance, shall provide for their payment of compensation and death benefits in the same manner and on the same terms in the event such members sustain injury or are killed while rendering assistance or support pursuant to this compact. Such benefits and compensation shall be deemed items of expense reimbursable pursuant to paragraph 3 of this article.

(B) Officer and enlisted personnel of the national guard performing duties subject to proper orders pursuant to this compact shall be subject to and governed by the provisions of their home state code of military justice whether they are performing duties within or without their home state. If any national guard member commits or is suspected of committing a criminal offense while performing duties pursuant to this compact without his home state, he may be returned immediately to his home state and he may be subject to disciplinary action to be taken. However, nothing in this section shall abrogate the general criminal jurisdiction of the state in which the offense occurred.

ARTICLE V. DELEGATION

Nothing in this compact shall be construed to prevent the Governor from delegating any of his responsibilities or authority respecting the national guard, providing that such delegation is otherwise in accordance with law. For purposes of this compact, however, the Governor shall not delegate the power to request assistance from another state.

ARTICLE VI. LIMITATIONS

Nothing in this compact may:

(1)    Authorize or permit national guard units or personnel to be placed under the operational control of any person not having the national guard rank or status required by law for the command in question; or

(2)    Deprive a properly convened court of jurisdiction over an offense of a defendant merely because of the fact that the national guard, while performing duties pursuant to this compact, was utilized in achieving an arrest or indictment.

ARTICLE VII. CONSTRUCTION AND SEVERABILITY

This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence, or provision of this compact is declared to be contrary to the Constitution of the United States or of any state or under any circumstance, is deemed invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance may not be affected thereby. If this compact is held to be contrary to the Constitution of any state participating herein, the compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the state affected as to all severable matters.

Source: SL 1994, ch 269.

CHAPTER 33-10

UNIFORM STATE CODE OF MILITARY JUSTICE

33-10-1    Repealed by SL 2012, ch 175, §§ 290 to 308.

33-10-20    Definitions.

33-10-21    Persons subject to this code.

33-10-22    Subject matter jurisdiction--Primary jurisdiction.

33-10-23    Jurisdiction over persons charged with fraudulent discharge.

33-10-24    Jurisdiction over deserters.

33-10-25    Applicability to persons in duty status or where nexus exists between offense and state military functions--Civilian jurisdiction.

33-10-26    Extraterritorial jurisdiction.

33-10-27    Judge advocate supervision.

33-10-28    Communication with judge advocates.

33-10-29    Judge advocate to reviewing authority.

33-10-30    Apprehension defined.

33-10-31    Persons authorized to apprehend upon probable cause.

33-10-32    Quelling of or apprehension for quarrels, frays, and disorders.

33-10-33    Extradition.

33-10-34    Fees for apprehension.

33-10-35    Arrest and confinement defined.

33-10-36    Arrest or confinement of enlisted member.

33-10-37    Arrest or confinement of commissioned officer, warrant officer, or civilian.

33-10-38    Probable cause to arrest or confine.

33-10-39    Custody before notification of proper authority.

33-10-40    Notice of offense--Diligent steps for trial or dismissal.

33-10-41    Place of confinement.

33-10-42    Receiving of prisoners.

33-10-43    Reports of prisoners.

33-10-44    Confinement with enemy prisoners prohibited.

33-10-45    Punishment prohibited before trial.

33-10-46    Delivery of offenders to civil authorities.

33-10-47    Completion of sentence of court martial upon return from civil authority.

33-10-48    Failure of enlisted member to report for duty--Arrest--Fees--Promulgation of rules.

33-10-49    Arrest or confinement for disobedience or disruption--Trespassers.

33-10-50    Commanding officer's non-judicial punishment.

33-10-51    Forms of punishment by any commanding officer.

33-10-52    Forms of punishment by major, lieutenant commander, or above.

33-10-53    Forms of punishment by Governor, adjutant general, or certain other officers.

33-10-54    Duration of consecutive punishments.

33-10-55    Arrest in quarters or restriction--Notice regarding right to trial by court-martial.

33-10-56    Suspension or mitigation of punishment.

33-10-57    Appeal.

33-10-58    Punishment not a bar to trial by court-martial or civilian court--Consideration of disciplinary punishment.

33-10-59    Forfeiture of pay.

33-10-60    Promulgation of rules regarding records.

33-10-61    Courts-martial classified.

33-10-62    Jurisdiction of courts-martial in general.

33-10-63    Jurisdiction of general courts-martial.

33-10-64    Jurisdiction of special courts-martial.

33-10-65    Jurisdiction of summary courts-martial.

33-10-66    Objection to trial by summary courts-martial.

33-10-67    Who may convene general courts-martial.

33-10-68    Who may convene special courts-martial.

33-10-69    Who may convene summary courts-martial.

33-10-70    Commissioned officer service on courts-martial.

33-10-71    Warrant officer service on courts-martial.

33-10-72    Enlisted member service on courts-martial.

33-10-73    Court-martial member to be senior to accused.

33-10-74    Qualifications of court-martial member.

33-10-75    Excuse of court-martial member from participating.

33-10-76    Military judge detailed to general and special court-martial.

33-10-77    Qualifications of military judge.

33-10-78    Admission of military judge pro hac vice.

33-10-79    Designation of military judge--Performance report prohibited.

33-10-80    Military judge may not be accuser, witness, investigator, or counsel.

33-10-81    Consultation with members of court.

33-10-82    Detail of trial counsel and defense counsel.

33-10-83    Counsel may not have been investigator, military judge, witness, court member, or opposing counsel.

33-10-84    Qualifications of counsel.

33-10-85    Admission of defense counsel pro hac vice--Qualifications.

33-10-86    Detail or employment of court reporters and interpreters--Promulgation of rules.

33-10-87    Absent members of court-martial.

33-10-88    Additional members of general court-martial.

33-10-89    Additional members of special court-martial.

33-10-90    Court-martial composed of military judge only--Procedure when military judge unable to proceed.

33-10-91    Marshal--Duties.

33-10-92    Compensation of marshal.

33-10-93    Malfeasance of sheriff or marshal.

33-10-94    Immunity of court members.

33-10-95    Charges and specifications.

33-10-96    Compulsory self-incrimination prohibited.

33-10-97    Advice of right to remain silent.

33-10-98    Compulsory self-degradation prohibited.

33-10-99    Exclusion of evidence.

33-10-100    Investigation of charges.

33-10-101    Notice to accused of charges--Right to counsel--Examination of witnesses--Statement of testimony.

33-10-102    Demand for further investigation.

33-10-103    Investigation of uncharged offenses.

33-10-104    Nonjurisdictional error.

33-10-105    Forwarding of charges.

33-10-106    Advice of judge advocate regarding charge.

33-10-107    Contents of judge advocate's statement--Reference for trial.

33-10-108    Correction of charges or specifications.

33-10-109    Service of charges.

33-10-110    Promulgation of procedural rules by Governor or adjutant general.

33-10-111    Unlawfully influencing action of court.

33-10-112    Report of performance as court-martial member, witness, or counsel prohibited.

33-10-113    Qualifications of trial counsel--Preparation of record.

33-10-114    Qualifications of defense counsel--Rights of accused.

33-10-115    Duties of defense counsel in court-martial proceeding resulting in conviction.

33-10-116    Sessions without presence of court-martial members--Record.

33-10-117    Presence of accused, counsel, and military judge at proceedings--Exception.

33-10-118    Continuances.

33-10-119    Challenges for cause.

33-10-120    Procedure when court members reduced below minimum by challenge for cause.

33-10-121    Peremptory challenges.

33-10-122    Procedure when court members reduced below minimum by peremptory challenge.

33-10-123    Challenges after additional members are detailed.

33-10-124    Oath of military judge, court-martial member, trial counsel, defense counsel, reporter, and interpreter.

33-10-125    Oath of witness.

33-10-126    Statute of limitations.

33-10-127    Unauthorized absence excluded in computing limitation period.

33-10-128    Absence from territory excluded in computing limitation period.

33-10-129    Limitation period during wartime.

33-10-130    Statute of limitations for new charges and specifications following dismissal for defect or insufficiency.

33-10-131    Conditions for new charges and specifications.

33-10-132    Former jeopardy.

33-10-133    Jeopardy where accused found guilty.

33-10-134    Jeopardy where accused not found guilty.

33-10-135    Not guilty plea.

33-10-136    Finding upon guilty plea--Withdrawal of guilty plea.

33-10-137    Opportunity to obtain witnesses and other evidence.

33-10-138    Refusal to appear or testify.

33-10-139    Witness fees.

33-10-140    Contempt.

33-10-141    Oral and written depositions.

33-10-142    Notice of deposition.

33-10-143    Officers before whom deposition taken.

33-10-144    Admissibility of deposition.

33-10-145    Admissibility of records of courts of inquiry.

33-10-146    Defense of lack of mental responsibility.

33-10-147    Burden of proof of lack of mental responsibility.

33-10-148    Findings by court-martial members when lack of mental responsibility at issue.

33-10-149    Findings by military judge or summary court-martial officer when lack of mental responsibility at issue.

33-10-150    Conditions for finding of not guilty by reason of lack of mental responsibility.

33-10-151    Voting by secret written ballot.

33-10-152    Rulings upon questions of law and interlocutory questions.

33-10-153    Instructions.

33-10-154    Findings and rulings by court-martial composed of military judge only.

33-10-155    Number of votes required.

33-10-156    Court to announce action.

33-10-157    Record of proceedings--Authentication.

33-10-158    Contents of record--Promulgation of rules.

33-10-159    Records of summary court-martial--Promulgation of rules.

33-10-160    Copy of record to be given to the accused.

33-10-161    Cruel and unusual punishments prohibited.

33-10-162    Maximum sentence--Felony and misdemeanor--Noncriminal conviction.

33-10-163    Limits of punishment.

33-10-164    Forfeitures.

33-10-165    Computation of period of confinement--Effective date of other sentences.

33-10-166    Deferment of sentence to confinement--Rescission.

33-10-167    Deferment until after accused has been permanently released to state military forces.

33-10-168    Persons subject to deferment until permanently released to state military forces.

33-10-169    Deferment of sentence to confinement while review pending.

33-10-170    Place of confinement.

33-10-171    Hard labor.

33-10-172    Fees for confinement.

33-10-173    Reduction of enlisted member pay grade.

33-10-174    Restoration of pay.

33-10-175    Forfeiture of pay and allowances.

33-10-176    Sentences subject to forfeiture of pay and allowances.

33-10-177    Waiver of forfeiture of pay and allowances for dependents of accused.

33-10-178    Restoration of pay and allowances.

33-10-179    Error of law.

33-10-180    Lesser included offense.

33-10-181    Prompt report of findings and sentence to convening authority.

33-10-182    Submission to convening authority of matters for consideration--Time for submission.

33-10-183    Extension of time for submission.

33-10-184    Provision of record to accused.

33-10-185    Waiver of right to make submission.

33-10-186    Authority to modify findings and sentence.

33-10-187    Action on sentence of court-martial.

33-10-188    Action on findings of court-martial.

33-10-189    Recommendation of judge advocate--Promulgation of rules--Response and objection.

33-10-190    Proceeding in revision or rehearing.

33-10-191    Matters considered at proceeding in revision.

33-10-192    Matters considered at rehearing--Dismissal without rehearing.

33-10-193    Withdrawal of appeal.

33-10-194    Time for withdrawal of appeal.

33-10-195    Appeal by the state.

33-10-196    Time for appeal by the state--Contents of notice of appeal.

33-10-197    Diligent prosecution of appeal.

33-10-198    State's appeal to Supreme Court limited to matters of law.

33-10-199    Consideration of delay concerning issue of speedy trial.

33-10-200    Rehearings.

33-10-201    Review by senior force judge advocate.

33-10-202    Adjutant General action--Promulgation of rules.

33-10-203    Action by adjutant general.

33-10-204    Dismissal when rehearing impracticable.

33-10-205    Action by the Governor.

33-10-206    Senior force judge advocate review of subject matter jurisdiction in case of finding of not guilty.

33-10-207    Action by adjutant general regarding subject matter jurisdiction.

33-10-208    Disposition of records.

33-10-209    Review by Supreme Court.

33-10-210    Appellate government counsel.

33-10-211    Right to counsel on appeal by state.

33-10-212    Right to counsel on appeal by accused.

33-10-213    Appointment of judge advocate to represent accused.

33-10-214    Representation by civilian appellate counsel.

33-10-215    Execution of sentence of dismissal or dishonorable or bad-conduct discharge when appeal not waived or withdrawn.

33-10-216    Execution of sentence when appeal waived or withdrawn.

33-10-217    Probation violation--Hearing--Representation by counsel.

33-10-218    Vacation of suspension--Execution of sentence.

33-10-219    Authority to vacate suspension.

33-10-220    Petition for new trial.

33-10-221    Remission and suspension.

33-10-222    Restoration--Promulgation of rules.

33-10-223    Substitution for dishonorable or bad-conduct discharge.

33-10-224    Reappointment of commissioned officer.

33-10-225    Finality of proceedings, findings, and sentences.

33-10-226    Leave required pending review of certain court-martial convictions.

33-10-227    Commitment of person incompetent to stand trial.

33-10-228    Action in accordance with statute applicable to persons incompetent to stand trial.

33-10-229    Notice of determination that accused is competent to stand trial.

33-10-230    Action by general court-martial convening authority or attorney general.

33-10-231    Custody of facility director.

33-10-232    References to court that ordered commitment.

33-10-233    Commitment of person found not guilty by reason of lack of mental responsibility.

33-10-234    Hearing on mental condition.

33-10-235    Report of hearing results.

33-10-236    Action when release would create substantial risk of injury or serious property damage.

33-10-237    Statute applicable to hospitalized person.

33-10-238    Application of statute comparable to 18 U.S.C. 4247(d).

33-10-239    Application of statute comparable to 18 U.S.C. § 4241 et seq.--Change of status.

33-10-240    Principal defined.

33-10-241    Accessory after the fact.

33-10-242    Included offense--Attempted offense.

33-10-243    Attempt defined.

33-10-244    Attempt to commit offense subject to punishment.

33-10-245    Conviction of attempt for consummated offense.

33-10-246    Conspiracy.

33-10-247    Solicitation to desert or mutiny.

33-10-248    Solicitation to commit misbehavior before the enemy or sedition.

33-10-249    Fraudulent enlistment, appointment, or separation.

33-10-250    Unlawful enlistment, appointment, or separation.

33-10-251    Desertion.

33-10-252    Desertion by commissioned officer.

33-10-253    Punishment for desertion.

33-10-254    Absence without leave.

33-10-255    Missing movement.

33-10-256    Contempt toward officials.

33-10-257    Disrespect toward superior commissioned officer.

33-10-258    Assaulting or willfully disobeying superior commissioned officer.

33-10-259    Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.

33-10-260    Failure to obey order or regulation.

33-10-261    Cruelty and maltreatment.

33-10-262    Mutiny--Sedition--Failure to suppress or report.

33-10-263    Punishment for mutiny or sedition.

33-10-264    Resistance--Flight--Breach of arrest--Escape.

33-10-265    Releasing prisoner without proper authority.

33-10-266    Unlawful detention.

33-10-267    Noncompliance with procedural rules.

33-10-268    Misbehavior before the enemy.

33-10-269    Subordinate compelling surrender.

33-10-270    Improper use of countersign.

33-10-271    Captured or abandoned property--Securing and turning over.

33-10-272    Captured or abandoned property--Offenses.

33-10-273    Aiding the enemy.

33-10-274    Misconduct as prisoner.

33-10-275    False official statements.

33-10-276    Military property--Loss, damage, destruction, or wrongful disposition.

33-10-277    Property other than military property--Waste, spoilage, or destruction.

33-10-278    Willful hazarding of vessel.

33-10-279    Negligent hazarding of vessel.

33-10-280    Drunk on duty.

33-10-281    Wrongful use, possession, or distribution of controlled substances.

33-10-282    Controlled substances defined.

33-10-283    Misbehavior of sentinel.

33-10-284    Malingering.

33-10-285    Riot or breach of peace.

33-10-286    Provoking speeches or gestures.

33-10-287    Frauds against the government.

33-10-288    Conduct unbecoming an officer.

33-10-289    Disorder and neglect--Conduct discrediting state military forces.

33-10-290    Court of inquiry convened for investigation.

33-10-291    Members of court--Counsel.

33-10-292    Parties.

33-10-293    Challenge to court members.

33-10-294    Oaths.

33-10-295    Witnesses.

33-10-296    Findings--Opinions.

33-10-297    Record of proceedings.

33-10-298    Administration of oaths for purposes of military administration.

33-10-299    Administration of oaths necessary in performance of duties.

33-10-300    Prima facie evidence of authority to administer oath.

33-10-301    Complaint of wrong.

33-10-302    Delegation by Governor.

33-10-303    Payment of fees, costs, and expenses.

33-10-304    Military justice fund.

33-10-305    Payment of fines--Disposition.

33-10-306    Uniformity of interpretation.

33-10-307    Immunity for action of military courts.

33-10-308    Short title.

33-10-1 to 33-10-19. Repealed by SL 2012, ch 175, §§ 290 to 308.

33-10-20. Definitions.

Terms used in this chapter mean:

(1)    "Accuser," a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused;

(2)    "Cadet," "candidate," or "midshipman," a person who is enrolled in or attending a state military academy, a regional training institute, or any other formal education program for the purpose of becoming a commissioned officer in the state military forces;

(3)    "Classified information,":

(a)    Any information or material that has been determined by an official of the United States or any state pursuant to law, an executive order, or regulation to require protection against unauthorized disclosure for reasons of national or state security; and

(b)    Any restricted data, as defined in section 11(y) of the Atomic Energy Act of 1954 (42 U.S.C. § 2014(y)) as of January 1, 2012;

(4)    "Code," this chapter;

(5)    "Commanding officer," includes only commissioned officers of the state military forces and shall include officers in charge only when administering nonjudicial punishment pursuant to this code. The term, commander, has the same meaning as commanding officer;

(6)    "Convening authority," includes, in addition to the person who convened the court, a commissioned officer commanding for the time being or a successor in command to the convening authority;

(7)    "Day," a calendar day and is not synonymous with the term, unit training assembly. Any punishment authorized by this code which is measured in terms of days shall, if served in a status other than annual field training, be construed to mean succeeding duty days;

(8)    "Duty status other than state active duty," any other type of duty not in federal service and not full-time duty in the active service of the state under an order issued by authority of law and includes travel to and from such duty;

(9)    "Enlisted member," a person in an enlisted grade;

(10)    "Judge advocate," a commissioned officer of the organized state military forces who is a member in good standing of the bar of the highest court of a state, and is:

(a)    Certified or designated as a judge advocate in the Judge Advocate General's Corps of the Army, Air Force, Navy, or the Marine Corps or designated as a law specialist as an officer of the Coast Guard, or a reserve component of one of these; or

(b)    Certified as a nonfederally recognized judge advocate by the senior judge advocate of the commander of the force in the state military forces of which the accused is a member, as competent to perform such military justice duties required by this code. If there is no such judge advocate available, then such certification may be made by such senior judge advocate of the commander of another force in the state military forces, as the convening authority directs;

(11)    "Military court," a court-martial or a court of inquiry;

(12)    "Military judge," an official of a general or special court-martial detailed in accordance with § 33-10-77;

(13)    "Military offenses," those offenses prescribed under this chapter;

(14)    "National security," the national defense and foreign relations of the United States;

(15)    "Officer," a commissioned or warrant officer;

(16)    "Officer in charge," a member of the Army or Air Force designated as such by appropriate authority;

(17)    "Record," when used in connection with the proceedings of a court-martial:

(a)    An official written transcript, written summary, or other writing relating to the proceedings; or

(b)    An official audiotape, videotape, digital image or file, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced;

(18)    "State," one of the several states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, and the U.S. Virgin Islands;

(19)    "State active duty," full-time duty in the state military forces under an order of the Governor or otherwise issued by authority of law, and paid by state funds, and includes travel to and from such duty;

(20)    "Senior force judge advocate," the senior judge advocate of the commander of the same force of the state military forces as the accused and who is that commander's chief legal advisor;

(21)    "State military forces," the National Guard of the State of South Dakota, as defined in Title 32, United States Code, and any other military force organized under the Constitution and laws of this State, when not in a status subjecting them to exclusive jurisdiction under chapter 47 of Title 10, United States Code;

(22)    "Superior commissioned officer," a commissioned officer superior in rank or command;

(23)    "Senior force commander," the commander of the same force of the state military forces as the accused.

Source: SL 2012, ch 175, § 1; SL 2023, ch 109, § 10.

33-10-21. Persons subject to this code.

This code applies at all times to all members of the state military forces and all other military forces attached or assigned thereto.

Source: SL 2012, ch 175, § 2.

33-10-22. Subject matter jurisdiction--Primary jurisdiction.

Subject matter jurisdiction is established if a nexus exists between an offense, either military or nonmilitary, and the state military force. Courts-martial have primary jurisdiction of military offenses as defined in § 33-10-20. A proper civilian court has primary jurisdiction of a nonmilitary offense when an act or omission violates both this code and local criminal law, foreign or domestic. In such a case, a court-martial may be initiated only after the civilian authority has declined to prosecute or dismissed the charge, provided jeopardy has not attached. Jurisdiction over attempted crimes, conspiracy crimes, solicitation, and accessory crimes shall be determined by the underlying offense.

Source: SL 2012, ch 175, § 3.

33-10-23. Jurisdiction over persons charged with fraudulent discharge.

Each person discharged from the state military forces who is later charged with having fraudulently obtained a discharge is, subject to §§ 33-10-126 to 33-10-129, inclusive, subject to trial by court-martial on that charge and is, after apprehension, subject to this code while in custody under the direction of the state military forces for that trial. Upon conviction of that charge that person is subject to trial by court-martial for all offenses under this code committed before the fraudulent discharge.

Source: SL 2012, ch 175, § 4.

33-10-24. Jurisdiction over deserters.

No person who has deserted from the state military forces may be relieved from amenability to the jurisdiction of this code by virtue of a separation from any later period of service.

Source: SL 2012, ch 175, § 5.

33-10-25. Applicability to persons in duty status or where nexus exists between offense and state military functions--Civilian jurisdiction.

This code has applicability at all times and in all places, provided that either the person subject to the code is in a duty status or, if not in a duty status, that there is a nexus between the act or omission constituting the offense and the efficient functioning of the state military forces. However, this grant of military jurisdiction shall neither preclude nor limit civilian jurisdiction over an offense, which is limited only by the prohibition of double jeopardy.

Source: SL 2012, ch 175, § 6.

33-10-26. Extraterritorial jurisdiction.

Courts-martial and courts of inquiry may be convened and held in units of the state military forces while those units are serving outside the state with the same jurisdiction and powers as to persons subject to this code as if the proceedings were held inside the state, and offenses committed outside the state may be tried and punished either inside or outside the state.

Source: SL 2012, ch 175, § 7.

33-10-27. Judge advocate supervision.

The senior force judge advocates in each of the state's military forces or that judge advocate's delegates shall make frequent inspections in the field in supervision of the administration of military justice in that force.

Source: SL 2012, ch 175, § 8.

33-10-28. Communication with judge advocates.

Convening authorities shall at all times communicate directly with their judge advocates in matters relating to the administration of military justice. The judge advocate of any command is entitled to communicate directly with the judge advocate of a superior or subordinate command, or with the state judge advocate.

Source: SL 2012, ch 175, § 9.

33-10-29. Judge advocate to reviewing authority.

No person who has acted as member, military judge, trial counsel, defense counsel, or investigating officer, or who has been a witness, in any case may later act as a judge advocate to any reviewing authority upon the same case.

Source: SL 2012, ch 175, § 10.

33-10-30. Apprehension defined.

Apprehension is the taking of a person into custody.

Source: SL 2012, ch 175, § 11.

33-10-31. Persons authorized to apprehend upon probable cause.

Any person authorized by this code or by chapter 47 of Title 10, United States Code, or by regulations issued under either, to apprehend persons subject to this code, any marshal of a court-martial appointed pursuant to the provisions of this code, and any peace officer or civil officer having authority to apprehend offenders under the laws of the United States or of a state, may do so upon probable cause that an offense has been committed and that the person apprehended committed it.

Source: SL 2012, ch 175, § 12.

33-10-32. Quelling of or apprehension for quarrels, frays, and disorders.

Commissioned officers, warrant officers, petty officers, and noncommissioned officers have authority to quell quarrels, frays, and disorders among persons subject to this code and to apprehend persons subject to this code who take part therein.

Source: SL 2012, ch 175, § 13.

33-10-33. Extradition.

If an offender is apprehended outside the state, the offender's return to the area must be in accordance with normal extradition procedures or by reciprocal agreement.

Source: SL 2012, ch 175, § 14.

33-10-34. Fees for apprehension.

No person authorized by this section to apprehend persons subject to this code or the place where such offender is confined, restrained, held, or otherwise housed may require payment of any fee or charge for so receiving, apprehending, confining, restraining, holding, or otherwise housing a person except as otherwise provided by law.

Source: SL 2012, ch 175, § 15.

33-10-35. Arrest and confinement defined.

Arrest is the restraint of a person by an order, not imposed as a punishment for an offense, directing the person to remain within certain specified limits. Confinement is the physical restraint of a person.

Source: SL 2012, ch 175, § 16.

33-10-36. Arrest or confinement of enlisted member.

An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to this code. A commanding officer may authorize warrant officers, petty officers, or noncommissioned officers to order enlisted members of the commanding officer's command or subject to the commanding officer's authority into arrest or confinement.

Source: SL 2012, ch 175, § 17.

33-10-37. Arrest or confinement of commissioned officer, warrant officer, or civilian.

A commissioned officer, a warrant officer, or a civilian subject to this code or to trial thereunder may be ordered into arrest or confinement only by a commanding officer to whose authority the person is subject, by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons into arrest or confinement may not be delegated.

Source: SL 2012, ch 175, § 18.

33-10-38. Probable cause to arrest or confine.

No person may be ordered into arrest or confinement except for probable cause.

Source: SL 2012, ch 175, § 19.

33-10-39. Custody before notification of proper authority.

Sections 33-10-35 to 33-10-38, inclusive, do not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.

Source: SL 2012, ch 175, § 20.

33-10-40. Notice of offense--Diligent steps for trial or dismissal.

If any person subject to this code is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform the person of the specific wrong of which the person is accused and diligent steps shall be taken to try the person or to dismiss the charges and release the person.

Source: SL 2012, ch 175, § 21.

33-10-41. Place of confinement.

If a person subject to this code is confined before, during, or after trial, confinement may be in a civilian or military confinement facility.

Source: SL 2012, ch 175, § 22.

33-10-42. Receiving of prisoners.

No person authorized to receive prisoners pursuant to this code may refuse to receive or keep any prisoner committed to the person's charge by a commissioned officer of the state military forces, if the committing officer furnishes a statement, signed by such officer, of the offense charged against the prisoner, unless otherwise authorized by law.

Source: SL 2012, ch 175, § 23.

33-10-43. Reports of prisoners.

Each person authorized to receive prisoners pursuant to this code to whose charge a prisoner is committed shall, within twenty-four hours after that commitment or as soon as the person is relieved from guard, report to the commanding officer of the prisoner the name of the prisoner, the offense charged against the prisoner, and the name of the person who ordered or authorized the commitment.

Source: SL 2012, ch 175, § 24.

33-10-44. Confinement with enemy prisoners prohibited.

No member of the state military forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces.

Source: SL 2012, ch 175, § 25.

33-10-45. Punishment prohibited before trial.

No person, while being held for trial or awaiting a verdict, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against the person. The arrest or confinement imposed upon such person may not be any more rigorous than the circumstances required to insure the person's presence, but the person may be subjected to minor punishment during that period for infractions of discipline.

Source: SL 2012, ch 175, § 26.

33-10-46. Delivery of offenders to civil authorities.

A person subject to this code accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial or confinement.

Source: SL 2012, ch 175, § 27.

33-10-47. Completion of sentence of court martial upon return from civil authority.

If delivery is made to any civil authority pursuant to § 33-10-46 of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender after having answered to the civil authorities for the offense shall, upon the request of competent military authority, be returned to the place of original custody for the completion of the person's sentence.

Source: SL 2012, ch 175, § 28.

33-10-48. Failure of enlisted member to report for duty--Arrest--Fees--Promulgation of rules.

If the Governor, as commander in chief, issues an order to the National Guard, or any portion thereof, or the commanding officer of an organization issues any order, to perform any military duty that may be required under the law and regulations, and any enlisted servicemember fails to report for duty, any law enforcement officer shall, upon written request of the commanding officer of such company or troop, if furnished with a copy of the order of the Governor or the commanding officer of the organization, arrest the enlisted servicemember and deliver that enlisted servicemember in person to the commanding officer wherever the commanding officer may direct. The law enforcement officer shall be allowed the same fees and mileage for such service as are now allowed by law in criminal cases. The fees and mileage shall in the first instance be paid by the state if the servicemember's duties are in the service of the state, otherwise the fees and mileage shall be paid as the United States so provides. The fees and mileage may be recovered from the servicemember in accordance with the rules and regulations of the United States armed forces. The Adjutant General may promulgate rules, pursuant to chapter 1-26, to provide for the recovery of fines and mileage from a servicemember who fails to report for military duty as ordered.

Source: SL 2012, ch 175, § 29; SL 2023, ch 109, § 11.

33-10-49. Arrest or confinement for disobedience or disruption--Trespassers.

The commanding officer at any encampment, parade, drill, muster, annual training, or other rendezvous of the National Guard may order subordinates to perform any lawful military duty. The commanding officer may place in arrest during the time of such meeting, and confine under guard, if necessary, any officer or enlisted member who disobeys the orders of a superior officer or in any way interrupts the training or exercises. The commanding officer may remove any other person who trespasses on the parade ground or armory, or in any way interrupts the orderly discharge of duty of any National Guard member.

Source: SL 2012, ch 175, § 30.

33-10-50. Commanding officer's non-judicial punishment.

Under such regulations as prescribed, any commanding officer (and for purposes of this section, officers-in-charge) may impose disciplinary punishments for minor offenses without the intervention of a court-martial pursuant to this section. The Governor, the adjutant general, or an officer of a general or flag rank in command may delegate the powers under this section to a principal assistant who is a member of the state military forces.

Source: SL 2012, ch 175, § 31.

33-10-51. Forms of punishment by any commanding officer.

Any commanding officer may impose upon enlisted members of the officer's command the following:

(1)    An admonition;

(2)    A reprimand;

(3)    The withholding of privileges for not more than six months which need not be consecutive;

(4)    The forfeiture of pay of not more than seven day's pay;

(5)    A fine of not more than seven day's pay;

(6)    A reduction to the next inferior pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction;

(7)    Extra duties, including fatigue or other duties, for not more than fourteen days, which need not be consecutive; and

(8)    Restriction to certain specified limits, with or without suspension from duty, for not more than fourteen days, which need not be consecutive.

Source: SL 2012, ch 175, § 32.

33-10-52. Forms of punishment by major, lieutenant commander, or above.

Any commanding officer of the grade of major or lieutenant commander, or above may impose upon enlisted members of the officer's command the following:

(1)    Any punishment authorized in subdivisions 33-10-51(1), (2), and (3);

(2)    The forfeiture of not more than one-half of one month's pay per month for two months;

(3)    A fine of not more than one month's pay;

(4)    A reduction to the lowest or any intermediate pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades;

(5)    Extra duties, including fatigue or other duties, for not more than forty-five days which need not be consecutive; and

(6)    Restriction to certain specified limits, with or without suspension from duty, for not more than sixty days which need not be consecutive.

Source: SL 2012, ch 175, § 33.

33-10-53. Forms of punishment by Governor, adjutant general, or certain other officers.

The Governor, the adjutant general, an officer exercising general court-martial convening authority, or an officer of a general or flag rank in command may impose:

(1)    Upon officers of the officer's command:

(a)    Any punishment authorized in subdivisions 33-10-52(1), (2), (3), and (6); and

(b)    Arrest in quarters for not more than thirty days which need not be consecutive; and

(2)    Upon enlisted members of the officer's command, any punishment authorized in § 33-10-52.

Source: SL 2012, ch 175, § 34.

33-10-54. Duration of consecutive punishments.

Whenever any of those punishments are combined to run consecutively, the total length of the combined punishment cannot exceed the authorized duration of the longest punishment in the combination, and there shall be an apportionment of punishments so that no single punishment in the combination exceeds its authorized length under this section.

Source: SL 2012, ch 175, § 35.

33-10-55. Arrest in quarters or restriction--Notice regarding right to trial by court-martial.

Prior to the offer of nonjudicial punishment, the commanding officer shall determine whether arrest in quarters or restriction shall be considered as punishments. If the commanding officer determines that the punishment options may include arrest in quarters or restriction, the accused shall be notified of the right to demand trial by court-martial. If the commanding officer determines that the punishment options do not include arrest in quarters or restriction, the accused shall be notified that there is no right to trial by courts-martial in lieu of nonjudicial punishment.

Source: SL 2012, ch 175, § 36.

33-10-56. Suspension or mitigation of punishment.

The officer who imposes the punishment, or the successor in command, may, at any time, suspend, set aside, mitigate, or remit any part or amount of the punishment and restore all rights, privileges, and property affected. The officer also may:

(1)    Mitigate reduction in grade to forfeiture of pay;

(2)    Mitigate arrest in quarters to restriction; or

(3)    Mitigate extra duties to restriction.

No mitigated punishment may be for a greater period than the punishment mitigated. When mitigating reduction in grade to forfeiture of pay, the amount of the forfeiture may not be greater than the amount that could have been imposed initially under this section by the officer who imposed the punishment mitigated.

Source: SL 2012, ch 175, § 37.

33-10-57. Appeal.

A person punished under this code who considers the punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority within fifteen days after the punishment is either announced or sent to the accused, as the commander may determine. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised pursuant to § 33-10-56 by the officer who imposed the punishment. Before acting on an appeal from a punishment, the authority that is to act on the appeal may refer the case to a judge advocate for consideration and advice.

Source: SL 2012, ch 175, § 38.

33-10-58. Punishment not a bar to trial by court-martial or civilian court--Consideration of disciplinary punishment.

The imposition and enforcement of disciplinary punishment under this code for any act or omission is not a bar to trial by court-martial or a civilian court of competent jurisdiction for a serious crime or offense growing out of the same act or omission and not properly punishable under this code; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial and, when so shown, it shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.

Source: SL 2012, ch 175, § 39.

33-10-59. Forfeiture of pay.

Whenever a punishment of forfeiture of pay is imposed under this code, the forfeiture may apply to pay accruing before, on, or after the date that punishment is imposed.

Source: SL 2012, ch 175, § 40.

33-10-60. Promulgation of rules regarding records.

Rules promulgated by the Adjutant General, pursuant to chapter 1-26, may prescribe the form of records to be kept of proceedings under this code and may prescribe that certain categories of those proceedings shall be in writing.

Source: SL 2012, ch 175, § 41; SL 2023, ch 109, § 12.

33-10-61. Courts-martial classified.

The three kinds of courts-martial in the state military forces are:

(1)    General courts-martial, consisting of:

(a)    A military judge and not less than five members; or

(b)    Only a military judge, if before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests, orally on the record or in writing, a court composed only of a military judge and the military judge approves;

(2)    Special courts-martial, consisting of:

(a)    A military judge and not less than three members; or

(b)    Only a military judge, if one has been detailed to the court, and the accused requests, orally on the record or in writing, a court composed only of a military judge and the military judge approves; and

(3)    Summary courts-martial, consisting of one commissioned officer.

Source: SL 2012, ch 175, § 42.

33-10-62. Jurisdiction of courts-martial in general.

Each component of the state military forces has court-martial jurisdiction over all members of the particular component who are subject to this code. Additionally, the Army and Air National Guard state military forces have court-martial jurisdiction over all members subject to this code.

Source: SL 2012, ch 175, § 43.

33-10-63. Jurisdiction of general courts-martial.

Subject to § 33-10-62, general courts-martial have jurisdiction to try persons subject to this code for any offense made punishable by this code, and may, under such limitations as the Governor may prescribe, adjudge any punishment not forbidden by this code.

Source: SL 2012, ch 175, § 44.

33-10-64. Jurisdiction of special courts-martial.

Subject to § 33-10-62, special courts-martial have jurisdiction to try persons subject to this code for any offense made punishable by this code, and may, under such limitations as the Governor may prescribe, adjudge any punishment not forbidden by this code except dishonorable discharge, dismissal, confinement for more than one year, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than one year.

Source: SL 2012, ch 175, § 45.

33-10-65. Jurisdiction of summary courts-martial.

Subject to § 33-10-62, summary courts-martial have jurisdiction to try persons subject to this code, except officers, cadets, candidates, and midshipmen, for any offense made punishable by this code under such limitations as the Governor may prescribe.

Source: SL 2012, ch 175, § 46.

33-10-66. Objection to trial by summary courts-martial.

No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if that person objects thereto. If objection to trial by summary court-martial is made by an accused, trial by special or general court-martial may be ordered, as may be appropriate. Summary courts-martial may, under such limitations as the Governor may prescribe, adjudge any punishment not forbidden by this code except dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, restriction to specified limits for more than two months, or forfeiture of more than two-thirds of one month's pay.

Source: SL 2012, ch 175, § 47.

33-10-67. Who may convene general courts-martial.

A general court-martial may be convened by the Governor or the adjutant general.

If any such commanding officer is an accuser, the court shall be convened by superior competent authority and may in any case be convened by such superior authority if considered desirable by such authority.

Source: SL 2012, ch 175, § 48.

33-10-68. Who may convene special courts-martial.

A special courts-martial may be convened by:

(1)    Any person who may convene a general court-martial;

(2)    The commanding officer of a garrison, fort, post, camp, station, Air National Guard base, or naval base or station;

(3)    The commanding officer of a brigade, regiment, group, detached battalion, or corresponding unit of the Army;

(4)    The commanding officer of a wing, group, separate squadron, or corresponding unit of the Air Force; or

(5)    The commanding officer or officer in charge of any other command when empowered by the adjutant general.

If any such officer is an accuser, the court shall be convened by superior competent authority and may in any case be convened by such superior authority if considered desirable by such authority.

Source: SL 2012, ch 175, § 49.

33-10-69. Who may convene summary courts-martial.

A summary court-martial may be convened by:

(1)    Any person who may convene a general or special court-martial;

(2)    The commanding officer of a detached company or other detachment, or corresponding unit of the Army;

(3)    The commanding officer of a detached squadron or other detachment, or corresponding unit of the Air Force; or

(4)    The commanding officer or officer in charge of any other command when empowered by the adjutant general.

If only one commissioned officer is present with a command or detachment that officer shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases. A summary court-martial may, however, be convened in any case by superior competent authority if considered desirable by such authority.

Source: SL 2012, ch 175, § 50.

33-10-70. Commissioned officer service on courts-martial.

Any commissioned officer of the state military forces may serve on all courts-martial for the trial of any person subject to this code.

Source: SL 2012, ch 175, § 51.

33-10-71. Warrant officer service on courts-martial.

Any warrant officer of the state military forces may serve on general and special courts-martial for the trial of any person subject to this code, other than a commissioned officer.

Source: SL 2012, ch 175, § 52.

33-10-72. Enlisted member service on courts-martial.

Any enlisted member of the state military forces who is not a member of the same unit as the accused may serve on general and special courts-martial for the trial of any enlisted member subject to this code. However, that member shall serve as a member of a court only if, before the conclusion of a session called by the military judge pursuant to § 33-10-116 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 orally on the record or 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 the members could not be obtained. In this section, unit, means any regularly organized body of the state military forces not larger than a company, a squadron, a division of the naval militia, or a body corresponding to one of them.

Source: SL 2012, ch 175, § 53.

33-10-73. Court-martial member to be senior to accused.

If it can be avoided, no person subject to this code may be tried by a court-martial where any member is junior to the accused in rank or grade.

Source: SL 2012, ch 175, § 54.

33-10-74. Qualifications of court-martial member.

If convening a court-martial, the convening authority shall detail as members thereof such members of the state military forces 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 of the state military forces is eligible to serve as a member of a general or special court-martial if that member is the accuser, a witness, or has acted as investigating officer or as counsel in the same case.

Source: SL 2012, ch 175, § 55.

33-10-75. Excuse of court-martial member from participating.

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. The convening authority may delegate the authority under this section to a judge advocate or to any other principal assistant.

Source: SL 2012, ch 175, § 56.

33-10-76. Military judge detailed to general and special court-martial.

A military judge shall be detailed to each general and special court-martial. The military judge shall preside over each open session of the court-martial to which the military judge has been detailed.

Source: SL 2012, ch 175, § 57.

33-10-77. Qualifications of military judge.

A military judge shall be:

(1)    An active or retired commissioned officer of an organized state or federal military force;

(2)    A member in good standing of the bar of the highest court of a state or a member of the bar of a federal court for at least five years; and

(3)    Certified as qualified for duty as a military judge by the senior force judge advocate which is the same force as the accused.

Source: SL 2012, ch 175, § 58.

33-10-78. Admission of military judge pro hac vice.

In the instance if a military judge is not a member of the bar of the highest court of the state, the military judge shall be deemed admitted pro hac vice, subject to filing a certificate with the senior force judge advocate which is the same force as the accused setting forth such qualifications provided in § 33-10-77.

Source: SL 2012, ch 175, § 59.

33-10-79. Designation of military judge--Performance report prohibited.

The military judge of a general or special court-martial shall be designated by the senior force judge advocate which is the same force as the accused, or a designee, for detail by the convening authority. Neither the convening authority nor any staff member of the convening authority may prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to performance of duty as a military judge.

Source: SL 2012, ch 175, § 60.

33-10-80. Military judge may not be accuser, witness, investigator, or counsel.

No person may act as military judge in a case if that person is the accuser or a witness, or has acted as investigating officer or a counsel in the same case.

Source: SL 2012, ch 175, § 61.

33-10-81. Consultation with members of court.

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 vote with the members of the court.

Source: SL 2012, ch 175, § 62.

33-10-82. Detail of trial counsel and defense counsel.

For each general and special court-martial the authority convening the court shall detail trial counsel, defense counsel, and such assistants as are appropriate.

Source: SL 2012, ch 175, § 63.

33-10-83. Counsel may not have been investigator, military judge, witness, court member, or opposing counsel.

No person who has acted as investigating officer, military judge, witness 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.

Source: SL 2012, ch 175, § 64.

33-10-84. Qualifications of counsel.

Except as provided in § 33-10-85, trial counsel or defense counsel detailed for a general or special court-martial shall be:

(1)    A judge advocate as defined in § 33-10-20; and

(2)    In the case of trial counsel, a member in good standing of the bar of the highest court of the state where the court-martial is held.

Source: SL 2012, ch 175, § 65.

33-10-85. Admission of defense counsel pro hac vice--Qualifications.

In the instance when a defense counsel is not a member of the bar of the highest court of the state, the defense counsel shall be deemed admitted pro hac vice, subject to filing a certificate with the military judge setting forth the qualifications that counsel is:

(1)    A commissioned officer of the armed forces of the United States or a component thereof;

(2)    A member in good standing of the bar of the highest court of a state;

(3)    Certified as a judge advocate in the Judge Advocate General's Corps of the Army, Air Force, Navy, or the Marine Corps; or

(4)    A judge advocate as defined in § 33-10-20.

Source: SL 2012, ch 175, § 66.

33-10-86. Detail or employment of court reporters and interpreters--Promulgation of rules.

Under such rules as may be promulgated by the Adjutant General pursuant to chapter 1-26, the convening authority of a general or special court-martial or court of inquiry shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court and may detail or employ interpreters who shall interpret for the court.

Source: SL 2012, ch 175, § 67; SL 2023, ch 109, § 13.

33-10-87. Absent members of court-martial.

No member of a general or special court-martial may be absent or excused after the court has been assembled for the trial of the accused unless excused as a result of a challenge, excused by the military judge for physical disability or other good cause, or excused by order of the convening authority for good cause.

Source: SL 2012, ch 175, § 68.

33-10-88. Additional members of general court-martial.

If a general court-martial, other than a general court-martial 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 the applicable minimum number of 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.

Source: SL 2012, ch 175, § 69.

33-10-89. Additional members of special court-martial.

If 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 been introduced previously 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, the accused, and counsel for both sides.

Source: SL 2012, ch 175, § 70.

33-10-90. Court-martial composed of military judge only--Procedure when military judge unable to proceed.

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 subsections 33-10-61(1)(b) or (2)(b), 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.

Source: SL 2012, ch 175, § 71.

33-10-91. Marshal--Duties.

A military court sitting in any county shall be attended by the county sheriff, or some suitable person designated by the sheriff, who shall be the marshal of the court and perform the usual duties of such marshals. The marshal shall execute any process lawfully issued by the court and perform all acts and duties by this chapter imposed on and authorized to be performed by any sheriff, marshal, or constable. The officer ordering the court shall furnish a copy of the order to the sheriff of the county where the court is directed to meet. The order constitutes notice to the sheriff to appear or designate someone as marshal of the court.

Source: SL 2012, ch 175, § 72.

33-10-92. Compensation of marshal.

Every marshal appointed to a military court shall be allowed the same fees and mileage allowed sheriffs for their duties in criminal cases as provided in § 7-12-18, the same to be paid on the certificate of the president of the court or presiding judge as to number of days employed and other duties performed. No marshal may receive any fees from the person served.

Source: SL 2012, ch 175, § 73.

33-10-93. Malfeasance of sheriff or marshal.

Refusal or neglect by the sheriff or marshal to execute any warrant required in § 33-10-91 or to return and pay all the money collected as fines subjects the offending sheriff or marshal to double the amount of such fines and penalties. The conversion to personal use of moneys so collected by any sheriff or marshal is theft and shall be prosecuted as such in any court of the state having jurisdiction in such cases.

Source: SL 2012, ch 175, § 74.

33-10-94. Immunity of court members.

No action may be maintained against any member of a military court on account of the imposition of a fine or penalty, or for the execution of a sentence on any person, if the person has been returned as delinquent and duly summoned before the court, or has appeared before the court to answer the charge made against the person.

Source: SL 2012, ch 175, § 75.

33-10-95. Charges and specifications.

Charges and specifications shall be signed by a person subject to this code under oath before a commissioned officer authorized by § 33-10-298 or 33-10-299, to administer oaths and shall state:

(1)    That the signer has personal knowledge of, or has investigated, the matters set forth therein; and

(2)    That they are true in fact to the best of the signer's knowledge and belief.

Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the person accused shall be informed of the charges as soon as practicable.

Source: SL 2012, ch 175, § 76.

33-10-96. Compulsory self-incrimination prohibited.

No person subject to this code may compel any person to incriminate himself or herself or to answer any question the answer to which may tend to incriminate the person.

Source: SL 2012, ch 175, § 77.

33-10-97. Advice of right to remain silent.

No person subject to this code may interrogate or request any statement from an accused or a person suspected of an offense without first informing that person of the nature of the accusation and advising that person that the person does not have to make any statement regarding the offense of which the person is accused or suspected and that any statement made by the person may be used as evidence against the person in a trial by court-martial.

Source: SL 2012, ch 175, § 78.

33-10-98. Compulsory self-degradation prohibited.

No person subject to this code may compel any person to make a statement or produce evidence before any military court if the statement or evidence is not material to the issue and may tend to degrade the person.

Source: SL 2012, ch 175, § 79.

33-10-99. Exclusion of evidence.

No statement obtained from any person in violation of §§ 33-10-96 to 33-10-98, inclusive, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against the person in a trial by court-martial.

Source: SL 2012, ch 175, § 80.

33-10-100. Investigation of charges.

No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.

Source: SL 2012, ch 175, § 81.

33-10-101. Notice to accused of charges--Right to counsel--Examination of witnesses--Statement of testimony.

The accused shall be advised of the charges against the accused and of the right to be represented at that investigation by counsel. The accused has the right to be represented at that investigation as provided in §§ 33-10-113 to 33-10-115, inclusive, and in any rule prescribed pursuant to that section. At that investigation, full opportunity shall be given to the accused to cross-examine any witness against the accused, if the witness is available, and to present anything the accused may desire in the accused's own behalf, either in defense or mitigation, and the investigating officer shall examine any available witness requested by the accused. If any charge is forwarded after the investigation, the charge shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.

Source: SL 2012, ch 175, § 82.

33-10-102. Demand for further investigation.

If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in § 33-10-101, no further investigation of that charge is necessary unless it is demanded by the accused after the accused is informed of the charge. A demand for further investigation entitles the accused to recall any witness for further cross-examination and to offer any new evidence in the accused's own behalf.

Source: SL 2012, ch 175, § 83.

33-10-103. Investigation of uncharged offenses.

If evidence adduced in an investigation indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense without the accused having first been charged with the offense if the accused is:

(1)    Present at the investigation;

(2)    Informed of the nature of each uncharged offense investigated; and

(3)    Afforded the opportunities for representation, cross-examination, and presentation prescribed in § 33-10-101.

Source: SL 2012, ch 175, § 84.

33-10-104. Nonjurisdictional error.

The requirements of §§ 33-10-100 to 33-10-103, inclusive, are binding on all persons administering this code but failure to follow them does not constitute jurisdictional error.

Source: SL 2012, ch 175, § 85.

33-10-105. Forwarding of charges.

If a person is held for trial by general court-martial, the commanding officer shall within fifteen days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the person exercising general court-martial jurisdiction. If that is not practicable, the commanding officer shall report in writing to that person the reasons for delay.

Source: SL 2012, ch 175, § 86.

33-10-106. Advice of judge advocate regarding charge.

Before directing the trial of any charge by general court-martial, the convening authority shall refer it to a judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless the convening authority has been advised in writing by a judge advocate that:

(1)    The specification alleges an offense under this code;

(2)    The specification is warranted by the evidence indicated in the report of investigation pursuant to §§ 33-10-100 to 33-10-104, inclusive, if there is such a report; and

(3)    A court-martial would have jurisdiction over the accused and the offense.

Source: SL 2012, ch 175, § 87.

33-10-107. Contents of judge advocate's statement--Reference for trial.

The advice of the judge advocate pursuant to § 33-10-106 with respect to a specification under a charge shall include a written and signed statement by the judge advocate:

(1)    Expressing conclusions with respect to each matter set forth in § 33-10-106; and

(2)    Recommending action that the convening authority take regarding the specification.

If the specification is referred for trial, the recommendation of the judge advocate shall accompany the specification.

Source: SL 2012, ch 175, § 88.

33-10-108. Correction of charges or specifications.

If the charges or specifications are not correct formally or do not conform to the substance of the evidence contained in the report of the investigating officer, formal correction, and such changes in the charges and specifications as are needed to make them conform to the evidence may be made.

Source: SL 2012, ch 175, § 89.

33-10-109. Service of charges.

The trial counsel shall serve or caused to be served upon the accused a copy of the charges. No person may, against the person's objection, be brought to trial before a general court-martial case within a period of five days after the service of charges upon the accused, or in a special court-martial, within a period of three days after the service of charges upon the accused.

Source: SL 2012, ch 175, § 90.

33-10-110. Promulgation of procedural rules by Governor or adjutant general.

Pretrial, trial, and post-trial procedures, including modes of proof, for courts-martial cases arising under this code, and for courts of inquiry, may be prescribed by the Governor or the adjutant general by rules promulgated pursuant to chapter 1-26, or as otherwise provided by law, which shall apply the principles of law and the rules of evidence generally recognized in military criminal cases in the courts of the armed forces but which may not be contrary to or inconsistent with this code.

Source: SL 2012, ch 175, § 91.

33-10-111. Unlawfully influencing action of court.

No authority convening a general, special, or summary court-martial, nor any other commanding officer, or officer serving on the staff thereof, may censure, reprimand, or admonish the court or any member, the military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court or with respect to any other exercise of its or their functions in the conduct of the proceedings. No person subject to this code may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or court of inquiry or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to their judicial acts. The foregoing provisions of the section do not apply with respect to:

(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, summary court-martial officer, or counsel.

Source: SL 2012, ch 175, § 92.

33-10-112. Report of performance as court-martial member, witness, or counsel prohibited.

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 active status, 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 of a court-martial or witness in a court-martial; or

(2)    Give a less favorable rating or evaluation of any counsel of the accused because of zealous representation before a court-martial.

Source: SL 2012, ch 175, § 93.

33-10-113. Qualifications of trial counsel--Preparation of record.

The trial counsel of a general or special court-martial shall be a member in good standing of a state or federal bar and shall prosecute in the name of the State of South Dakota, and shall, under the direction of the court, prepare the record of the proceedings.

Source: SL 2012, ch 175, § 94.

33-10-114. Qualifications of defense counsel--Rights of accused.

Qualifications of the defense counsel or the accused rights are as follows:

(1)    The accused has the right to be represented in defense before a general or special court-martial or at an investigation pursuant to §§ 33-10-100 to 33-10-104, inclusive, as provided in this section;

(2)    The accused may be represented by civilian counsel at the provision and expense of the accused;

(3)    The accused may be represented:

(a)    By military counsel detailed by §§ 33-10-82 to 33-10-85, inclusive; or

(b)    By military counsel of the accused's own selection if that counsel is reasonably available as determined pursuant to subdivision (7) of this section;

(4)    If the accused is represented by civilian counsel, military counsel detailed or selected pursuant to subdivision (3) of this section shall act as associate counsel unless excused at the request of the accused;

(5)    Except as provided pursuant to subdivision (6) of this section, if the accused is represented by military counsel of the accused's own selection pursuant to subsection (3)(b) of this section, any military counsel detailed pursuant to subsection (3)(a) of this section shall be excused;

(6)    No accused may be represented by more than one military counsel. However, the person authorized pursuant to §§ 33-10-82 to 33-10-85, inclusive, to detail counsel, in that person's sole discretion:

(a)    May detail additional military counsel as assistant defense counsel; and

(b)    If the accused is represented by military counsel of the accused's own selection pursuant to subsection (3)(b) of this section, may approve a request from the accused that military counsel detailed pursuant to subsection (3)(a) of this section act as associate defense counsel; and

(7)    The senior force judge advocate of the same force of which the accused is a member, shall determine whether the military counsel selected by an accused is reasonably available.

Source: SL 2012, ch 175, § 95.

33-10-115. Duties of defense counsel in court-martial proceeding resulting in conviction.

In any court-martial proceeding resulting in a conviction, the defense counsel may:

(1)    Forward for attachment to the record of proceedings a brief of such matters as counsel determines should be considered in behalf of the accused on review, including any objection to the contents of the record which counsel considers appropriate;

(2)    Assist the accused in the submission of any matter under §§ 33-10-181 to 33-10-192, inclusive; and

(3)    Take other action authorized by this code.

Source: SL 2012, ch 175, § 96.

33-10-116. Sessions without presence of court-martial members--Record.

At any time after the service of charges that have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to § 33-10-109, call the court into session without the presence of the members for the purpose of:

(1)    Hearing and determining motions raising defenses or objections that are capable of determination without trial of the issues raised by a plea of not guilty;

(2)    Hearing and ruling upon any matter that 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)    Holding the arraignment and receiving the pleas of the accused; and

(4)    Performing any other procedural function that does not require the presence of the members of the court under this code.

These proceedings 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 court members and without regard to § 33-10-91.

Source: SL 2012, ch 175, § 97.

33-10-117. Presence of accused, counsel, and military judge at proceedings--Exception.

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.

Source: SL 2012, ch 175, § 98.

33-10-118. Continuances.

The military judge of a court-martial or a summary court-martial may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.

Source: SL 2012, ch 175, § 99.

33-10-119. Challenges for cause.

The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge or the court shall determine the relevancy and validity of challenges for cause and may not receive a challenge to more than one person at a time. Any challenge by the trial counsel shall ordinarily be presented and decided before any challenge by the accused is offered.

Source: SL 2012, ch 175, § 100.

33-10-120. Procedure when court members reduced below minimum by challenge for cause.

If exercise of a challenge for cause reduces the court below the minimum number of members required by § 33-10-61, all parties shall, notwithstanding the provisions of §§ 33-10-87 to 33-10-90, inclusive, either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court. However, no peremptory challenges may be exercised at that time.

Source: SL 2012, ch 175, § 101.

33-10-121. Peremptory challenges.

Each accused and the trial counsel are entitled initially to three peremptory challenges of members of the court; and such additional peremptory challenges as the military judge may grant for good cause. No military judge may be challenged except for cause.

Source: SL 2012, ch 175, § 102.

33-10-122. Procedure when court members reduced below minimum by peremptory challenge.

If exercise of a peremptory challenge reduces the court below the minimum number of members required by § 33-10-61, the parties shall, notwithstanding the provisions of §§ 33-10-87 to 33-10-90, inclusive, either exercise or waive any remaining peremptory challenge, not previously waived, against the remaining members of the court before additional members are detailed to the court.

Source: SL 2012, ch 175, § 103.

33-10-123. Challenges after additional members are detailed.

If any additional members are detailed to the court, and after any challenge for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to three peremptory challenges of members of the court; and such additional peremptory challenges as the military judge may grant for good cause against members not previously subject to peremptory challenge.

Source: SL 2012, ch 175, § 104.

33-10-124. Oath of military judge, court-martial member, trial counsel, defense counsel, reporter, and interpreter.

Before performing their respective duties, military judges, general and special courts-martial members, trial counsel, defense counsel, reporters, and interpreters shall take an oath or affirmation in the presence of the accused to perform their duties faithfully. The form of the oath or affirmation, the time and place of the taking of the oath or affirmation, the manner of recording the oath or affirmation, and whether the oath or affirmation shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in rule or as provided by law. If such an oath or affirmation is taken, it need not again be taken at the time the judge advocate or other person is detailed to that duty.

Source: SL 2012, ch 175, § 105.

33-10-125. Oath of witness.

Each witness before a court-martial shall be examined under oath or affirmation.

Source: SL 2012, ch 175, § 106.

33-10-126. Statute of limitations.

Except as otherwise provided in §§ 33-10-127 to 33-10-131, inclusive, a person charged with any offense is not liable to be tried by court-martial or punished pursuant to §§ 33-10-50 to 33-10-60, inclusive, if the offense was committed more than three years before the receipt of sworn charges and specifications by an officer exercising court-martial jurisdiction over the command or before the imposition of punishment pursuant to §§ 33-10-50 to 33-10-60, inclusive.

Source: SL 2012, ch 175, § 107.

33-10-127. Unauthorized absence excluded in computing limitation period.

Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in § 33-10-126.

Source: SL 2012, ch 175, § 108.

33-10-128. Absence from territory excluded in computing limitation period.

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 the enemy, shall be excluded in computing the period of limitation prescribed in § 33-10-126.

Source: SL 2012, ch 175, § 109.

33-10-129. Limitation period during wartime.

If the United States is at war, the running of any statute of limitations applicable to any offense under this code:

(1)    Involving fraud or attempted fraud against the United States, any state, or any agency of either in any manner, whether by conspiracy or not;

(2)    Committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the United States or any state; or

(3)    Committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or government agency;

is suspended until two years after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.

Source: SL 2012, ch 175, § 110.

33-10-130. Statute of limitations for new charges and specifications following dismissal for defect or insufficiency.

If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations:

(1)    Has expired; or

(2)    Will expire within one hundred eighty days after the date of dismissal of the charges and specifications, trial and punishment under new charges and specifications are not barred by the statute of limitations if the conditions specified in § 33-10-131 are met.

Source: SL 2012, ch 175, § 111.

33-10-131. Conditions for new charges and specifications.

The conditions referred to in § 33-10-130 are that the new charges and specifications shall:

(1)    Be received by an officer exercising summary court-martial jurisdiction over the command within one hundred eighty days after the dismissal of the charges or specifications; and

(2)    Allege the same acts or omissions that were alleged in the dismissed charges or specifications (or allege acts or omissions that were included in the dismissed charges or specifications).

Source: SL 2012, ch 175, § 112.

33-10-132. Former jeopardy.

No person may, without the person's consent, be tried a second time for the same offense.

Source: SL 2012, ch 175, § 113.

33-10-133. Jeopardy where accused found guilty.

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 § 33-10-132 until the finding of guilty has become final after review of the case has been fully completed.

Source: SL 2012, ch 175, § 114.

33-10-134. Jeopardy where accused not found guilty.

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 § 33-10-132.

Source: SL 2012, ch 175, § 115.

33-10-135. Not guilty plea.

If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty improvidently or through lack of understanding of the plea's meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty.

Source: SL 2012, ch 175, § 116.

33-10-136. Finding upon guilty plea--Withdrawal of guilty plea.

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 or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event, the proceedings shall continue as though the accused had pleaded not guilty.

Source: SL 2012, ch 175, § 117.

33-10-137. Opportunity to obtain witnesses and other evidence.

The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence as prescribed by rule and provided by law. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall apply the principles of law and the rules of courts-martial generally recognized in military criminal cases in the courts of the armed forces of the United States, but which may not be contrary to or inconsistent with this code. Process shall run to any part of the United States, or the territories, commonwealths, and possessions, and may be executed by civil officers as prescribed by the laws of the place where the witness or evidence is located or of the United States.

Source: SL 2012, ch 175, § 118.

33-10-138. Refusal to appear or testify.

Any person not subject to this code who:

(1)    Has been duly subpoenaed to appear as a witness or to produce books and records before a court-martial or court of inquiry, or before any military or civil officer designated to take a deposition to be read in evidence before such a court; and

(2)    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;

may be punished by the military court in the same manner as a criminal court of the state.

Source: SL 2012, ch 175, § 119.

33-10-139. Witness fees.

The fees and mileage of witnesses shall be paid out of the appropriations for the compensation of witnesses.

Source: SL 2012, ch 175, § 120.

33-10-140. Contempt.

A military judge or summary court-martial officer may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder.

A person subject to this code may be punished for contempt by confinement not to exceed thirty days or a fine of one hundred dollars, or both.

A person not subject to this code may be punished for contempt by a military court in the same manner as a criminal court of the state.

Source: SL 2012, ch 175, § 121.

33-10-141. Oral and written depositions.

At any time after charges have been signed as provided in § 33-10-95, any party may take oral or written depositions unless the military judge or summary court-martial officer hearing the case or, if the case is not being heard, an authority competent to convene a court-martial for the trial of those charges forbids it for good cause.

Source: SL 2012, ch 175, § 122.

33-10-142. Notice of deposition.

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.

Source: SL 2012, ch 175, § 123.

33-10-143. Officers before whom deposition taken.

A deposition 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.

Source: SL 2012, ch 175, § 124.

33-10-144. Admissibility of deposition.

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 audiotape, videotape, digital image or file, or similar material, may be played in evidence before any military court, if it appears:

(1)    That the witness resides or is beyond the state in which the court is ordered to sit, or beyond one hundred miles from the place of trial or hearing;

(2)    That the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, non amenability 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)    That the present whereabouts of the witness is unknown.

Source: SL 2012, ch 175, § 125.

33-10-145. Admissibility of records of courts of inquiry.

In any case not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence.

Such testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer.

Such testimony may also be read in evidence before a court of inquiry.

Source: SL 2012, ch 175, § 126.

33-10-146. Defense of lack of mental responsibility.

It is an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.

Source: SL 2012, ch 175, § 127.

33-10-147. Burden of proof of lack of mental responsibility.

The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.

Source: SL 2012, ch 175, § 128.

33-10-148. Findings by court-martial members when lack of mental responsibility at issue.

If the lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall instruct the members of the court as to the defense of lack of mental responsibility under this section and charge them to find the accused:

(1)    Guilty;

(2)    Not guilty; or

(3)    Not guilty only by reason of lack of mental responsibility.

Source: SL 2012, ch 175, § 129.

33-10-149. Findings by military judge or summary court-martial officer when lack of mental responsibility at issue.

Section 33-10-148 does not apply to a court-martial composed of a military judge only. In the case of a court-martial composed of a military judge only or a summary court-martial officer, if the lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge or summary court-martial officer shall find the accused:

(1)    Guilty;

(2)    Not guilty; or

(3)    Not guilty only by reason of lack of mental responsibility.

Source: SL 2012, ch 175, § 130.

33-10-150. Conditions for finding of not guilty by reason of lack of mental responsibility.

Notwithstanding the provisions of § 33-10-155, the accused shall be found not guilty only by reason of lack of mental responsibility if:

(1)    A majority of the members of the court-martial present at the time the vote is taken determines that the defense of lack of mental responsibility has been established; or

(2)    In the case of a court-martial composed of a military judge only or a summary court-martial officer, the military judge or summary court-martial officer determines that the defense of lack of mental responsibility has been established.

Source: SL 2012, ch 175, § 131.

33-10-151. Voting by secret written ballot.

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.

Source: SL 2012, ch 175, § 132.

33-10-152. Rulings upon questions of law and interlocutory questions.

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 § 33-10-155, beginning with the junior in rank.

Source: SL 2012, ch 175, § 133.