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U.S. Code as of:
01/19/04
Section 838. Art. 38. Duties of trial counsel and defense counsel
(a) The trial counsel of a general or special court-martial shall
prosecute in the name of the United States, and shall, under the
direction of the court, prepare the record of the proceedings.
(b)(1) The accused has the right to be represented in his defense
before a general or special court-martial or at an investigation
under section 832 of this title (article 32) as provided in this
subsection.
(2) The accused may be represented by civilian counsel if
provided by him.
(3) The accused may be represented -
(A) by military counsel detailed under section 827 of this
title (article 27); or
(B) by military counsel of his own selection if that counsel is
reasonably available (as determined under regulations prescribed
under paragraph (7)).
(4) If the accused is represented by civilian counsel, military
counsel detailed or selected under paragraph (3) shall act as
associate counsel unless excused at the request of the accused.
(5) Except as provided under paragraph (6), if the accused is
represented by military counsel of his own selection under
paragraph (3)(B), any military counsel detailed under paragraph
(3)(A) shall be excused.
(6) The accused is not entitled to be represented by more than
one military counsel. However, the person authorized under
regulations prescribed under section 827 of this title (article 27)
to detail counsel, in his sole discretion -
(A) may detail additional military counsel as assistant defense
counsel; and
(B) if the accused is represented by military counsel of his
own selection under paragraph (3)(B), may approve a request from
the accused that military counsel detailed under paragraph (3)(A)
act as associate defense counsel.
(7) The Secretary concerned shall, by regulation, define
"reasonably available" for the purpose of paragraph (3)(B) and
establish procedures for determining whether the military counsel
selected by an accused under that paragraph is reasonably
available. Such regulations may not prescribe any limitation based
on the reasonable availability of counsel solely on the grounds
that the counsel selected by the accused is from an armed force
other than the armed force of which the accused is a member. To the
maximum extent practicable, such regulations shall establish
uniform policies among the armed forces while recognizing the
differences in the circumstances and needs of the various armed
forces. The Secretary concerned shall submit copies of regulations
prescribed under this paragraph to the Committee on Armed Services
of the Senate and the Committee on Armed Services of the House of
Representatives.
(c) In any court-martial proceeding resulting in a conviction,
the defense counsel -
(1) may forward the attachment to the record of proceedings a
brief of such matters as he determines should be considered in
behalf of the accused on review (including any objection to the
contents of the record which he considers appropriate);
(2) may assist the accused in the submission of any matter
under section 860 of this title (article 60); and
(3) may take other action authorized by this chapter.
(d) An assistant trial counsel of a general court-martial may,
under the direction of the trial counsel or when he is qualified to
be a trial counsel as required by section 827 of this title
(article 27), perform any duty imposed by law, regulation, or the
custom of the service upon the trial counsel of the court. An
assistant trial counsel of a special court-martial may perform any
duty of the trial counsel.
(e) An assistant defense counsel of a general or special
court-martial may, under the direction of the defense counsel or
when he is qualified to be the defense counsel as required by
section 827 of this title (article 27), perform any duty imposed by
law, regulation, or the custom of the service upon counsel for the
accused.
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