(1) Voting by members of a general or special courtmartial on questions of challenge, on the findings, and on the sentence shall be by secret written ballot. The junior member in rank 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.
The military judge of a general or special court-martial shall rule upon interlocutoryquestions, other than a challenge, arising during the proceedings. Any ruling made by the military judge upon any interlocutory question, other than a motion for a finding of not guilty or the question of the accused's sanity, is final and constitutes the ruling of the court. However, the military judge may change the ruling at any time during the trial; except that he or she may not change a ruling on a motion for a finding of not guilty that was granted. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in section 28-3.1-317, beginning with the junior member in rank.
Before a vote is taken on the findings, the military judge shall, in the presence of theaccused and counsel, instruct the court as to the elements of the offense and charge the court:
That the accused must be presumed to be innocent until his or her guilt is establishedby legal and competent evidence beyond reasonable doubt;
That, in the case being considered, if there is a reasonable doubt as to the guilt of theaccused, the doubt must be resolved in favor of the accused and he or she must be acquitted;
That, if there is a reasonable doubt as to the degree of guilt, the finding must be in alower degree as to which there is no reasonable doubt; and
That the burden of proof of establishing the guilt of the accused beyond reasonabledoubt is upon the prosecution.
(4) The provisions of subsections (1), (2), and (3) of this section shall not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum decision is filed, it shall be sufficient if the findings of fact appear therein.
Source: L. 83: Entire article added, p. 1178, § 1, effective June 10. L. 2002: (2), (3)(a), and (3)(b) amended, p. 611, § 83, effective May 24.