10 U.S.C. § 851

Art. 51. Voting and rulings

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(a) Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member 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.(b) The military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused is final and constitutes the ruling of the court, except that the military judge may change a ruling at any time during trial.(c) Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them—(1) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;(2) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted;(3) that, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and(4) that the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the United States.(d) Subsections (a), (b), and (c) do 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 of decision is filed, it will be sufficient if the findings of fact appear therein.(Aug. 10, 1956, ch. 1041, 70A Stat. 54; Pub. L. 90–632, § 2(21), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 114–328, div. E, title LVII, § 5234, Dec. 23, 2016, 130 Stat. 2915.)

Historical and Revision Notes
851(a) 851(b)	50:626(a). 50:626(b).	May 5, 1950, ch. 169, § 1 (Art. 51), 64 Stat. 124.
851(c)	50:626(c).

Historical and Revision Notes

851(a)

851(b)

50:626(a).

50:626(b).

May 5, 1950, ch. 169, § 1 (Art. 51), 64 Stat. 124.

851(c)

50:626(c).

In subsection (a), the words “in each case” are omitted as surplusage.

In subsection (b), the word “is” is substituted for the words “shall be” in the second sentence. The word “constitutes” is substituted for the words “shall constitute”. The word “However,” is substituted for the word “but”. The word “his” is substituted for the words “any such”. The words “the ruling is” are substituted for the words “such ruling be”. The words “voice vote” are substituted for the words “vote * * * viva voce”.

In subsection (c), the word “must” is substituted for the word “shall” in clause (2), since a condition is prescribed, not a command. The words “United States” are substituted for the word “Government”.

Editorial NotesAmendments

2016—Subsec. (a). Pub. L. 114–328, § 5234(1), struck out “, and by members of a court-martial without a military judge upon questions of challenge,” after “on the sentence”.

Subsec. (b). Pub. L. 114–328, § 5234(2), struck out “and, except for questions of challenge, the president of a court-martial without a military judge” after “The military judge” and substituted “is final and constitutes the ruling of the court, except that the military judge may change a ruling at any time during trial.” for “, or by the president of a court-martial without a military judge upon any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court. However, the military judge or the president of a court-martial without a military judge may change his ruling at any time during trial. 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 852 of this title (article 52), beginning with the junior in rank.”

Subsec. (c). Pub. L. 114–328, § 5234(3), struck out “or the president of a court-martial without a military judge” after “the military judge” in introductory provisions.

1968—Subsec. (a). Pub. L. 90–632, § 2(21)(A), limited the balloting on the question of challenges to courts-martial without military judges.

Subsec. (b). Pub. L. 90–632, § 2(21)(B), substituted “military judge” for “law officer” and inserted reference to the military judge’s ruling upon challenges for cause when a military judge is part of a court-martial and reference to questions of law.

Subsec. (c). Pub. L. 90–632, § 2(21)(C), substituted “military judge” for “law officer” and made minor changes in phraseology eliminating the division between general and special court-martials.

Subsec. (d). Pub. L. 90–632, § 2(21)(D), added subsec. (d).

Statutory Notes and Related SubsidiariesEffective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective 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.

Notes of Decisions

Cited in 233 cases (4 in the last 5 years), 1957–2024 · leading case: United States v. New

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United States v. New (2001) armfor · cites it 12× “51(b), UCMJ, 10 USC § 851 (b). Military personnel are obligated to obey lawful orders and regulations.”

Weiss v. United States (1994) scotus · cites it 4× “51, UCMJ, *168 10 U. S. C. § 851 . The members decide guilt or innocence and impose sentence unless, of course, the trial is before the judge alone.”

United States v. Wolford (2006) armfor · cites it 2× “Military Judge’s Instructions Article 51(c), UCMJ, 10 U.S.C. § 851 (c) (2000), and Rule for Courts-Martial (R.”

United States v. Ober (2008) armfor · cites it 2× “” Article 51(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 851 (c) (2000); see also Rule for Courts-Martial (R.”

United States v. Davis (2017) armfor “” 10 U.S.C. § 851 (c) (2012). This statutory duty extends to affirmative defenses as well.”

United States v. Sales (1986) cma “§ 859 (a), be reconciled with the Code provisions that findings and sentence be rendered by the court-martial, see Articles 51 and 52, UCMJ, 10 U.S.C. §§ 851 and 852, respectively. United States v.”

United States v. Mance (1988) cma · cites it 2× “51(c), UCMJ, 10 U.S.C. § 851 (c); R.C.M. 920(e)(1), 1984 Manual, supra.”

United States v. Private E2 JOSHUA C. DAVIS (2015) acca · cites it 2× “Instead, the court in Taylor noted that “from its earliest days, this Court has rested the duty to instruct on affirmative defenses primarily on Article 51(c) of the Uniform Code, 10 U.S.C. § 851 (c), rather than on Manual provisions.”

United States v. Miller (2003) armfor · cites it 2× “The MCM amplifies the UCMJ, setting forth a requirement for instructions on the maximum punishment, the United States v.”

United States v. Gray (1999) armfor · cites it 2× “51(c), UCMJ, 10 USC § 851 (c). In this context, we conclude that there is no "reasonable likelihood" that the members of this court-martial were acting in any unconstitutional manner.”

United States v. Kaiser (2003) armfor · cites it 2× “As reflected in the language of Article 51(c)(1), UCMJ, 10 U.S.C. § 851 (c)(1) (2002), the presumption of innocence is directly related to the requirement that guilt be established by legal and competent evidence beyond a reasonable doubt.”

United States v. Vargas (2014) armfor · cites it 2× “” However, such assessments in a criminal case are best left to the counsel trying the case, especially since Article 51(c)(4), UCMJ, 10 U.S.C. § 851 (c)(4) (2012), expressly burdens the Government with proving the guilt of the accused beyond a reasonable doubt.”

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— 10 U.S.C. § 851(b) — 1 case

United States v. Hitchcock (1979) cma

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