48-2716. (KCMJ Art. 51) Voting and rulings.
48-2716
48-2716. (KCMJ Art. 51) Voting and rulings.(a) Voting by members for a general or special court-martial on thefindings and onthe sentence, and by members of a court-martial without a military judgeon questions of challenge, shall be by secret written ballot. The junior member of thecourt shall in each case count the votes. The count shall be checked by thepresident, who shall forthwith announce the result of the ballot to themembers of the court.
(b) The military judge, and, except for questions of challenge, thepresident of a court-martial without a military judge, shall rule uponall questions of law and allinterlocutory questions arising during the proceedings. Any such rulingmade by the military judge upon any question of law or any interlocutoryquestion other than the factual issue of mental responsibility of theaccused, or by the president of a court-martial without a military judgeupon any question of law other than a motion for a finding of not guilty,is final and constitutes the ruling of the court. However, themilitary judge, or the president of a court-martial without a militaryjudge, may change the ruling at any time during the trial. Unlessthe ruling is final, if any member objects thereto, the court shall becleared and closed and the question decided by a voice vote as provided inK.S.A. 48-2717 and amendments thereto beginning with the junior in rank.
(c) Before a vote is taken on the findings, the military judge shall inthe presence of the accused and counsel, instruct the members of the courtas to the elements of the offense and charge them that:
(1) The accused must be presumed to be innocent until guilt isestablished by legal and competent evidence beyond reasonable doubt;
(2) in the case being considered, if there is a reasonable doubt asto the guilt of the accused, the doubt must be resolved in favor of theaccused and the accused must be acquitted;
(3) if there is a reasonable doubt as to the degree of guilt, thefinding must be in a lower degree as to which there is no reasonable doubt;and
(4) the burden of proof of establishing the guilt of the accusedbeyond reasonable doubt is upon the state.
(d) Subsections (a), (b) and (c) do not apply to a court-martialcomposed of a military judge only. The military judge of such acourt-martial shall determine all questions of law and fact arising duringthe proceedings and, if the accused is convicted, adjudge and imposeappropriate sentence. The military judge of such a court-martial shall makea general finding and shall in addition on request find the factsspecially. If an opinion or memorandum of decision is filed, it will besufficient if the findings of fact appear therein.
History: L. 1972, ch. 203, § 48-2716;L. 1988, ch. 191, § 33; July 1.