123STA T . 2 589PUBLIC LA W 111 – 8 4—O CT. 28 , 2 0 09 ‘ ‘ §94 9 l.Votinga n dru ling s‘ ‘ (a)VOTEBYS E CR ET W R I TTE NBAL LOT .— V otingbyme mbe rs o f ami l itary c ommission u n d ert h is cha p ter on the findings and on the sentence shall be by secret w ritten ballot. ‘‘(b) RU LIN GS .—( 1 ) T he military j udge in a military commission under this chapter shall rule upon all q uestions of law , including the admissibility of e v idence and all interlocutory questions arising during the proceedings. ‘‘( 2 ) A ny 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. H owever, a military judge may change such a ruling at any time during the trial. ‘‘(c) I NSTRUCTIONS P RIOR TO VOTE.—Before a vote is ta k en 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 the accused ’ s guilt is established by legal and competent evidence beyond a reasonable doubt
‘‘(2) that in the case being considered, if there is a reason - able doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and the accused 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 U nited States. ‘‘§ 949 m . N um be ro fv otes re q uired ‘‘(a) C ON V ICTION.— N o person may be convicted by a military commission under this chapter of any offense, e x cept as provided in section 9 49i(b) of this title or by concurrence of two-thirds of the members present at the time the vote is taken. ‘‘(b) SENTENCES.—(1) E xcept as provided in paragraphs (2) and (3), 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. ‘‘(2) No person may be sentenced to death by a military commis- sion, except insofar as— ‘‘(A) the penalty of death has been expressly authori z ed under this chapter, chapter 4 7 of this title, 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 was convicted of the offense by the concur- rence of all the members present at the time the vote is taken; and ‘‘( D ) all members present at the time the vote was taken concurred in the sentence of death. ‘‘(3) No person may be sentenced to life imprisonment, or to confinement for more than 1 0 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. Det e rmina ti o n .
