An Article 39(a) session is a court-martial proceeding run by the military judge without the panel members present, used to handle arraignment, pleas, pretrial motions, and any other legal matters the judge can decide alone. It takes its name from subsection (a) of Article 39 of the Uniform Code of Military Justice, and it functions much like a motion hearing in a civilian criminal court. Most court-martial cases involve at least one of these sessions, and often several.
The reason the format exists is straightforward. Panel members, the military equivalent of a jury, should not hear legal arguments, contested confessions, or other material that might color their view of the case before they are allowed to weigh it. Pulling those matters into a separate judge-only session keeps the panel insulated and lets the judge resolve legal questions on a clean record.
What the Judge Handles at These Sessions
Article 39 lists five categories of business a military judge may take up without members in the room:1Office of the Law Revision Counsel. 10 USC 839 – Art. 39. Sessions
- Hearing and deciding pretrial motions that raise defenses or objections the judge can resolve without a full trial on the merits.
- Ruling on any legal question within the judge’s authority, whether or not the panel members will later revisit the issue.
- Arraigning the accused and receiving a plea of guilty or not guilty.
- Conducting the sentencing proceeding after a finding of guilt.
- Performing any other procedural function the judge is authorized to handle without panel participation.
That last category is intentionally broad. It covers scheduling conferences, discovery disputes, victim-rights questions, and anything else that keeps a case moving without dragging the members into legal arguments they should not hear.
When Article 39(a) Sessions Happen
A military judge can call a session at any point after charges have been referred to a court-martial composed of a judge and members. Most cases have at least one session before trial begins, and the judge can call additional sessions during breaks in the trial or after the verdict. Post-trial sessions are less common but well-established: before the judge authenticates the record of trial, the judge retains authority to reconvene to address matters such as newly discovered evidence or issues affecting the legal sufficiency of the findings or sentence.
The UCMJ sets minimum waiting periods before any session can begin. In a general court-martial, the accused cannot be brought to trial (including a 39(a) session) until at least five days after the charges are served. In a special court-martial, the minimum is three days. If the defense objects to being rushed, the judge must ask about it at the start of the first session and halt the proceedings if the waiting period has not been met.2Joint Service Committee on Military Justice. Rules for Courts-Martial
Who Is in the Room
The statute requires three parties at every session: the accused, the defense counsel, and the trial counsel (the military prosecutor). Everything said is recorded and made part of the official court-martial record. Panel members are specifically excluded.
The accused’s right to be present is fundamental but not absolute. Under the Rules for Courts-Martial, an accused who voluntarily leaves after arraignment is treated as having waived that right. The judge may also remove an accused who persists in disruptive behavior after being warned. In limited circumstances, the accused can expressly waive the right to be present, but the judge must first explain the consequences and obtain the accused’s personal consent.3Joint Service Committee on Military Justice. Rules for Courts-Martial – RCM 804
Crime victims have their own rights under Article 6b of the UCMJ, including reasonable notice of public hearings, the right not to be excluded (absent a judicial finding, based on clear and convincing evidence, that their testimony would be materially altered), and the right to confer with the prosecution.4Office of the Law Revision Counsel. 10 USC 806b – Art. 6b. Rights of the Victim of an Offense Under This Chapter In sex-offense cases, the victim is typically represented by a Special Victims’ Counsel, a military attorney who has an attorney-client relationship with the victim and must be given prompt notice of any hearing or trial session.5Office of the Law Revision Counsel. 10 USC 1044e – Special Victims Counsel for Victims of Sex-Related Offenses
Sessions are generally open to the public. A judge can exclude specific spectators to maintain order, but full closure requires case-specific findings on the record showing an overriding interest that would be harmed by an open session and that no narrower measure would work.
The Motions That Drive These Sessions
Article 39(a) sessions are where the most consequential pretrial fights happen. A handful of issues come up repeatedly.
Suppression of Statements and Evidence
Defense counsel frequently move to exclude statements the accused made to investigators. Article 31 of the UCMJ requires that before questioning a suspect, the questioner explain the nature of the accusation and warn that the suspect does not have to say anything and that any statement can be used against them at trial. A statement obtained without those warnings, or through coercion or unlawful influence, cannot be used as evidence.6Office of the Law Revision Counsel. 10 USC 831 – Art. 31. Compulsory Self-Incrimination Prohibited The judge hears testimony about how the statement was taken, rules on admissibility, and states the reasoning on the record. These hearings are often the fiercest part of a court-martial, because losing a confession can gut the prosecution’s case.
Jurisdictional Challenges
The defense may argue that the court-martial lacks jurisdiction over the accused (for example, if military status is disputed) or over the charged offenses. These are pure legal questions that the members have no role in deciding, so they are resolved during a 39(a) session.
Arraignment and Guilty-Plea Inquiries
Arraignment itself is conducted as a 39(a) session. If the accused pleads guilty, the judge must conduct a providency inquiry (sometimes called a Care inquiry, after a military appellate case). The judge questions the accused directly to confirm the plea is voluntary, the accused understands the elements of each offense and the potential penalties, and there is a factual basis supporting guilt. Article 45 requires the judge to reject the plea and enter a plea of not guilty if the plea was entered improvidently or the accused does not genuinely understand it.7Office of the Law Revision Counsel. 10 USC 845 – Art. 45. Pleas of the Accused
Sexual-Offense Privacy Hearings
In cases involving sexual offenses, Military Rule of Evidence 412 (the military’s rape-shield rule) bars evidence about a victim’s past sexual behavior or sexual predisposition unless it falls within narrow exceptions. Before any such evidence can be admitted, the defense must file a written motion describing the evidence and its purpose. The judge then holds a closed hearing during a 39(a) session, with the victim and parties given the right to attend and be heard. The motion, supporting materials, and hearing record are sealed unless the court orders otherwise.
When the Judge Must State Findings on the Record
When a motion turns on disputed facts, the military judge must state the essential factual findings on the record. This requirement exists so that appellate courts can meaningfully review the ruling. A judge who skips this step risks reversal, because a reviewing court has no way to know what evidence the judge relied on or found credible.
Judge-Alone Trials Run Entirely as 39(a) Sessions
When an accused waives trial by panel members and elects a trial by military judge alone, the entire court-martial is conducted as an Article 39(a) session. There are no members to exclude, so every phase of the trial, from opening statements through findings and sentencing, takes place in this format. The Rules for Courts-Martial define a “court-martial” to include the military judge when a session is conducted without members under Article 39(a).8Joint Service Committee on Military Justice. Rules for Courts-Martial – RCM 803 The same procedural protections that govern a pretrial motion hearing govern the entire trial: the accused must be present, counsel must be there, and everything goes on the record.
Why the Rulings Matter
Decisions made during a 39(a) session are binding on everyone for the rest of the trial. When the judge grants a motion to suppress a confession, the prosecution cannot mention it in front of the panel. When the judge denies the motion, the evidence comes in at trial, though the defense preserves the issue for appeal.
These sessions also produce stipulations of fact, written agreements between the prosecution and defense about undisputed matters. Once the judge accepts a stipulation, the panel members must treat those facts as established. Neither side can later argue the opposite of what was stipulated.
Most of the time, if the judge rules against the prosecution during a 39(a) session, the government has to work with the ruling and try the case anyway. But Article 62 of the UCMJ gives the prosecution the right to appeal certain categories of orders before the trial concludes:9Office of the Law Revision Counsel. 10 USC 862 – Art. 62. Appeal by the United States
- Rulings that terminate the proceedings against a charge or specification.
- Rulings that suppress evidence constituting substantial proof of a material fact.
- Orders directing disclosure of classified information, imposing sanctions for nondisclosure, or refusing to issue or enforce a protective order sought by the government.
- A judge’s order entering a not-guilty finding after the panel has already returned a guilty verdict.
To appeal, the trial counsel must provide the military judge with written notice within 72 hours of the ruling and certify that the appeal is not filed for delay. Once that notice is filed, the ruling is automatically stayed. The appeal goes directly to the Court of Criminal Appeals, which considers only questions of law and is required to give the appeal priority whenever practicable. Any delay caused by the appeal is excluded from speedy-trial calculations unless the appeal was filed solely to stall and was completely without merit.
The practical effect is that Article 39(a) sessions often decide the outcome of a case before the panel members ever sit down. A suppression ruling can force a plea deal. A jurisdictional ruling can end the case entirely. The judge’s findings of fact create the foundation for any appeal that follows.