10 U.S.C. § 824a

Current through P.L. 118-47 (published on www.congress.gov on 03/23/2024)

Section 824a - Art. 24a. Special trial counsel

(a) DETAIL OF SPECIAL TRIAL COUNSEL.-Each Secretary concerned shall promulgate regulations for the detail of commissioned officers to serve as special trial counsel.

(b) QUALIFICATIONS.-A special trial counsel shall be a commissioned officer who-

(1)

(A) is a member of the bar of a Federal court or a member of the bar of the highest court of a State; and

(B) is certified to be qualified, by reason of education, training, experience, and temperament, for duty as a special trial counsel by-

(i) the Judge Advocate General of the armed force of which the officer is a member; or

(ii) in the case of the Marine Corps, the Staff Judge Advocate to the Commandant of the Marine Corps; and

(2) in the case of a lead special trial counsel appointed pursuant to section 1044f(a)(2) of this title, is in a grade no lower than O-7.

(c) DUTIES AND AUTHORITIES.-

(1) IN GENERAL.-Special trial counsel shall carry out the duties described in this chapter and any other duties prescribed by the Secretary concerned, by regulation.

(2) DETERMINATION OF COVERED OFFENSE; RELATED CHARGES.-

(A) AUTHORITY.-A special trial counsel shall have exclusive authority to determine if a reported offense is a covered offense and shall exercise authority over any such offense in accordance with this chapter. Any determination to prefer or refer charges shall not act to disqualify the special trial counsel as an accuser.

(B) KNOWN AND RELATED OFFENSES.-If a special trial counsel determines that a reported offense is a covered offense, the special trial counsel may also exercise authority over any offense that the special trial counsel determines to be related to the covered offense and any other offense alleged to have been committed by a person alleged to have committed the covered offense.

(3) DISMISSAL; REFERRAL; PLEA BARGAINS.-Subject to paragraph (5), with respect to charges and specifications alleging any offense over which a special trial counsel exercises authority, a special trial counsel shall have exclusive authority to, in accordance with this chapter-

(A) on behalf of the Government, withdraw or dismiss the charges and specifications or make a motion to withdraw or dismiss the charges and specifications;

(B) refer the charges and specifications for trial by a special or general court-martial;

(C) enter into a plea agreement; and

(D) determine if an authorized rehearing is impracticable.

(4) BINDING DETERMINATION.-The determination of a special trial counsel to refer charges and specifications to a court-martial for trial shall be binding on any applicable convening authority for the referral of such charges and specifications.

(5) DEFERRAL TO COMMANDER OR CONVENING AUTHORITY.-If a special trial counsel exercises authority over an offense and elects not to prefer charges and specifications for such offense or, with respect to charges and specifications for such offense preferred by a person other than a special trial counsel, elects not to refer such charges and specifications, a commander or convening authority may exercise any of the authorities of such commander or convening authority under this chapter with respect to such offense, except that such commander or convening authority may not refer charges and specifications for a covered offense for trial by special or general court-martial.

(d) SPECIAL TRIAL COUNSEL AUTHORITY OVER CERTAIN OTHER OFFENSES.-

(1) OFFENSES OCCURRING BEFORE EFFECTIVE DATE.-A special trial counsel may, at the sole and exclusive discretion of the special trial counsel, exercise authority over the following offenses:

(A) An offense under section 917a (article 117a), 918 (article 118), section 919 (article 119), section 920 (article 120), section 920b (article 120b), section 920c (article 120c), section 928b (article 128b), or the standalone offense of child pornography punishable under section 934 (article 134) of this title that occurred on or before December 27, 2023.

(B) An offense under section 925 (article 125), section 930 (article 130), or section 932 (article 132) of this title that occurred on or after January 1, 2019, and before December 28, 2023.

(C) An offense under section 920a (article 120a) of this title, an offense under section 925 (article 125) of this title alleging an act of nonconsensual sodomy, or the standalone offense of kidnapping punishable under section 934 (article 134) of this title that occurred before January 1, 2019.

(D) A conspiracy to commit an offense specified in subparagraph (A), (B), or (C) as punishable under section 881 of this title (article 81).

(E) A solicitation to commit an offense specified in subparagraph (A), (B), or (C) as punishable under section 882 of this title (article 82).

(F) An attempt to commit an offense specified in subparagraph (A), (B), (C), (D), or (E) as punishable under section 880 of this title (article 80).

(2) EFFECT OF EXERCISE OF AUTHORITY.-

(A) TREATMENT AS COVERED OFFENSE.-If a special trial counsel exercises authority over an offense pursuant to paragraph (1), the offense over which the special trial counsel exercises authority shall be considered a covered offense for purposes of this chapter.

(B) KNOWN OR RELATED OFFENSES.-If a special trial counsel exercises authority over an offense pursuant to paragraph (1), the special trial counsel may exercise the authority of the special trial counsel under subparagraph (B) of subsection (c)(2) with respect to other offenses described in that subparagraph without regard to the date on which the other offenses occur.

10 U.S.C. § 824a

Added Pub. L. 117-81, div. A, title V, §531(a), Dec. 27, 2021, 135 Stat. 1692; amended Pub. L. 117-263, div. A, title V, §542(a), Dec. 23, 2022, 136 Stat. 2581; Pub. L. 118-31, div. A, title V, §531(c)(1), Dec. 22, 2023, 137 Stat. 258.

EDITORIAL NOTES

AMENDMENTS2023-Subsec. (d). Pub. L. 118-31 added subsec. (d).2022-Subsec. (c)(3). Pub. L. 117-263, §542(a)(1), substituted "Subject to paragraph (5)" for "Subject to paragraph (4)" in introductory provisions.Subsec. (c)(3)(D). Pub. L. 117-263, §542(a)(2), substituted "an authorized rehearing" for "an ordered rehearing".

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2023 AMENDMENT Amendment by Pub. L. 118-31 effective immediately after amendment by part 1 of subtitle D of title V of Pub. L. 117-81 see section 531(e) of Pub. L. 118-31 set out as a note under section 816 of this title.

EFFECTIVE DATE OF 2022 AMENDMENT Pub. L. 117-263, div. A, title V, §542(b), Dec. 23, 2022, 136 Stat. 2581, provided that: "The amendments made by subsection (a) [amending this section] shall take effect immediately after the coming into effect of the amendments made by section 531 of the National Defense Authorization Act for Fiscal Year 2022 ( Public Law 117-81; 135 Stat. 1692) [enacting this section] as provided in section 539C of that Act ( 10 U.S.C. 801 note)."

EFFECTIVE DATESection effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with provisions for delayed effect and applicability if regulations are not prescribed by the President before the date that is two years after Dec. 27, 2021, see section 539C of Pub. L. 117-81 set out as an Effective Date of 2021 Amendment note under section 801 of this title.

RESIDUAL PROSECUTORIAL DUTIES AND OTHER JUDICIAL FUNCTIONS OF CONVENING AUTHORITIES IN COVERED CASES Pub. L. 117-263, div. A, title V, §541(c), Dec. 23, 2022, 136 Stat. 2580, provided that: "The President shall prescribe regulations to ensure that residual prosecutorial duties and other judicial functions of convening authorities, including granting immunity, ordering depositions, and hiring experts, with respect to charges and specifications over which a special trial counsel exercises authority pursuant to section 824a of title 10, United States Code (article 24a of the Uniform Code of Military Justice) (as added by section 531 of the National Defense Authorization Act for Fiscal Year 2022 ( Public Law 117-81; 135 Stat. 1692)), are transferred to the military judge, the special trial counsel, or other authority as appropriate in such cases by no later than the effective date established in section 539C of the National Defense Authorization Act for Fiscal Year 2022 ( Public Law 117-81; 10 U.S.C. 801 note), in consideration of due process for all parties involved in such a case."

Secretary concerned: The term "Secretary concerned" means-(A) the Secretary of the Army, with respect to matters concerning the Army;(B) the Secretary of the Navy, with respect to matters concerning the Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Department of the Navy;(C) the Secretary of the Air Force, with respect to matters concerning the Air Force and the Space Force; and(D) the Secretary of Homeland Security, with respect to matters concerning the Coast Guard when it is not operating as a service in the Department of the Navy.
commissioned officer: The term "commissioned officer" includes a commissioned warrant officer.
grade: The term "grade" means a step or degree, in a graduated scale of office or military rank, that is established and designated as a grade by law or regulation.
officer: The term "officer" means a commissioned or warrant officer.