ARTICLE 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 State of Oklahoma, 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 or her defense before a general or special court-martial or at a preliminary hearing 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 the accused.

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 or her own selection if that counsel is reasonably available as determined under regulations prescribed under paragraph 7 of this subsection.

4. If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph 3 of this subsection shall act as associate counsel unless excused at the request of the accused.

5. Except as provided under paragraph 6 of this subsection, if the accused is represented by military counsel of his or her own selection under subparagraph b of paragraph 3 of this subsection, any military counsel detailed under subparagraph a of paragraph 3 of this subsection 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 or her sole discretion:

a.may detail additional military counsel as assistant defense counsel, and

b.if the accused is represented by military counsel of his or her own selection under subparagraph b of paragraph 3 of this subsection, may approve a request from the accused that military counsel detailed under subparagraph a of paragraph 3 of this subsection, act as associate defense counsel.

7. The Adjutant General shall, by regulation, define "reasonably available" for the purpose of subparagraph b of paragraph 3 of this subsection, 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 a force component other than the one of which the accused is a member. To the maximum extent practicable, such regulations shall establish uniform policies between the force components of the state military forces while recognizing the differences in the circumstances and needs of both force components.

C. In any court-martial proceeding resulting in a conviction, the defense counsel:

1. May forward for attachment to the record of proceedings a brief of such matters as he or she determines should be considered in behalf of the accused on review (including any objection to the contents of the record which he or she considers appropriate);

2. May assist the accused in the submission of any matter under Section 860, 860A or 860B of this title (Article 60, 60A or 60B); and

3. May take other action authorized by the Oklahoma Uniform Code of Military Justice.

D. An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he or she 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 perform any duty imposed by law, regulation, or the custom of the service upon counsel for the accused.

Added by Laws 2019, c. 408, § 45, eff. Oct. 1, 2019.