
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC838]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                           PART II--PERSONNEL
 
              CHAPTER 47--UNIFORM CODE OF MILITARY JUSTICE
 
                     SUBCHAPTER VII--TRIAL PROCEDURE
 
Sec. 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.

(Aug. 10, 1956, ch. 1041, 70A Stat. 50; Pub. L. 90-632, Sec. 2(14), Oct. 
24, 1968, 82 Stat. 1338; Pub. L. 97-81, Sec. 4(b), Nov. 20, 1981, 95 
Stat. 1088; Pub. L. 98-209, Sec. 3(e), Dec. 6, 1983, 97 Stat. 1394; Pub. 
L. 104-106, div. A, title XV, Sec. 1502(a)(1), Feb. 10, 1996, 110 Stat. 
502; Pub. L. 106-65, div. A, title X, Sec. 1067(1), Oct. 5, 1999, 113 
Stat. 774.)

                                          Historical and Revision Notes
-------------------------------------------------------------------------------
---------------------------------
            Revised section                      Source (U.S. Code)            
   Source (Statutes at Large)
-------------------------------------------------------------------------------
---------------------------------
838(a)................................  50:613(a).                           Ma
y 5, 1950, ch. 169, Sec.  1 (Art.
838(b)................................  50:613(b).                            3
8), 64 Stat. 120.
838(c)................................  50:613(c).
838(d)................................  50:613(d).
838(e)................................  50:613(e).
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---------------------------------

    In subsection (b), the word ``has'' is substituted for the words 
``shall have''. The word ``under'' is substituted for the words 
``pursuant to''. The word ``duly'' is omitted as surplusage. The words 
``detailed'' and ``who were detailed'' are substituted for the word 
``appointed'', since the filling of the position involved is not 
appointment to an office in the constitutional sense.
    In subsection (c), the word ``considers'' is substituted for the 
words ``may deem''.


                               Amendments

    1999--Subsec. (b)(7). Pub. L. 106-65 substituted ``and the Committee 
on Armed Services'' for ``and the Committee on National Security''.
    1996--Subsec. (b)(7). Pub. L. 104-106 substituted ``Committee on 
Armed Services of the Senate and the Committee on National Security of 
the House of Representatives'' for ``Committees on Armed Services of the 
Senate and House of Representatives''.
    1983--Subsec. (b)(6). Pub. L. 98-209, Sec. 3(e)(1), substituted 
``the person authorized under regulations prescribed under section 827 
of this title (article 27) to detail counsel'' for ``a convening 
authority''.
    Subsec. (b)(7). Pub. L. 98-209, Sec. 3(e)(2), inserted provision 
that 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.
    Subsec. (c). Pub. L. 98-209, Sec. 3(e)(3), designated existing 
provisions as par. (1), made minor changes in phraseology and 
punctuation, and added pars. (2) and (3).
    1981--Subsec. (b). Pub. L. 97-81 revised subsec. (b) by dividing its 
provisions into seven numbered paragraphs and inserted provisions 
relating to the right to counsel at an investigation under section 832 
of this title (article 32), authorizing the promulgation of regulations 
relating to the ``reasonable availability'' of military counsel, and 
authorizing the detailing of additional military counsel for the accused 
under specified circumstances.
    1968--Subsec. (b). Pub. L. 90-632 substituted ``military judge or by 
the president of a court-martial without a military judge'' for 
``president of the court''.


                    Effective Date of 1983 Amendment

    Amendment by Pub. L. 98-209 effective first day of eighth calendar 
month after Dec. 6, 1983, but not to affect the designation or detail of 
a military judge or military counsel to a court-martial before that 
date, see section 12(a)(1), (2) of Pub. L. 98-209, set out as a note 
under section 801 of this title.


                    Effective Date of 1981 Amendment

    Amendment by Pub. L. 97-81 to take effect at end of 60-day period 
beginning on Nov. 20, 1981, and to apply to trials by courts-martial in 
which all charges are referred to trial on or after that date, see 
section 7(a) and (b)(4) of Pub. L. 97-81, set out as an Effective Date 
note under section 706 of this title.


                    Effective Date of 1968 Amendment

    Amendment by Pub. L. 90-632 effective on first day of tenth month 
following October 1968, see section 4 of Pub. L. 90-632, set out as a 
note under section 801 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 832, 937 of this title.
