Page:United States Statutes at Large Volume 120.djvu/2647

 120 STAT. 2616

PUBLIC LAW 109–366—OCT. 17, 2006

‘‘(2) Any ruling made by the military judge upon a question of law or an interlocutory question (other than the factual issue of mental responsibility of the accused) is conclusive and constitutes the ruling of the military commission. However, a military judge may change his ruling at any time during the trial. ‘‘(c) INSTRUCTIONS PRIOR TO VOTE.—Before a vote is taken of the findings of a military commission under this chapter, the military judge shall, in the presence of the accused and counsel, instruct the members as to the elements of the offense and charge the members— ‘‘(1) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond a 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 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 a reasonable doubt is upon the United States. ‘‘§ 949m. Number of votes required ‘‘(a) CONVICTION.—No person may be convicted by a military commission under this chapter of any offense, except as provided in section 949i(b) of this title or by concurrence of two-thirds of the members present at the time the vote is taken. ‘‘(b) SENTENCES.—(1) No person may be sentenced by a military commission to suffer death, except insofar as— ‘‘(A) the penalty of death is expressly authorized under this chapter or the law of war for an offense of which the accused has been found guilty; ‘‘(B) trial counsel expressly sought the penalty of death by filing an appropriate notice in advance of trial; ‘‘(C) the accused is convicted of the offense by the concurrence of all the members present at the time the vote is taken; and ‘‘(D) all the members present at the time the vote is taken concur in the sentence of death. ‘‘(2) No person may be sentenced to life imprisonment, or to confinement for more than 10 years, by a military commission under this chapter except by the concurrence of three-fourths of the members present at the time the vote is taken. ‘‘(3) All other sentences shall be determined by a military commission by the concurrence of two-thirds of the members present at the time the vote is taken. ‘‘(c) NUMBER OF MEMBERS REQUIRED FOR PENALTY OF DEATH.— (1) Except as provided in paragraph (2), in a case in which the penalty of death is sought, the number of members of the military commission under this chapter shall be not less than 12. ‘‘(2) In any case described in paragraph (1) in which 12 members are not reasonably available because of physical conditions or military exigencies, the convening authority shall specify a lesser number of members for the military commission (but not fewer than 9 members), and the military commission may be assembled, and the trial held, with not fewer than the number of members so specified. In such a case, the convening authority shall make

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