U.S. v. Johnson, 53 M.J. 459

Core Criminal Law Subjects: Witnesses: Production of

1. where an accused has sufficiently important, legally-cognizable interests in the materials or testimony sought, and thereby has standing, there is no reason why a third-party challenge either to a subpoena duces tecum or a subpoena ad testificandum could not be raised during an Article 32 investigation
2. standing to object to a subpoena duces tecum or a subpoena ad testificandum during an Article 32 investigation exists when the actions of the government impact upon the reliability of the evidence presented against an accused at trial, e.g., coerced confessions, unlawful command influence, interference with the rights of confrontation or cross-examination, and interference with the right to present evidence
3. where testimony of accused’s wife at Article 32 investigation was secured by means of an illegally ordered German subpoena, accused lacked standing to object where: appellant was neither deprived of a right nor hindered in presenting his case; appellant and his counsel attended the Article 32; appellant had full notice of the witnesses against him and did not object to his wife’s testimony at the Article 32; appellant had the opportunity to confront his wife and did cross-examine her at the Article 32; and the testimony of the wife at the Article 32 investigation was reliable

Core Criminal Law Subjects: Motions, Generally: Pretrial › Generally

1. where an accused has sufficiently important, legally-cognizable interests in the materials or testimony sought, and thereby has standing, there is no reason why a third-party challenge either to a subpoena duces tecum or a subpoena ad testificandum could not be raised during an Article 32 investigation
2. standing to object to a subpoena duces tecum or a subpoena ad testificandum during an Article 32 investigation exists when the actions of the government impact upon the reliability of the evidence presented against an accused at trial, e.g., coerced confessions, unlawful command influence, interference with the rights of confrontation or cross-examination, and interference with the right to present evidence
3. where testimony of accused’s wife at Article 32 investigation was secured by means of an illegally ordered German subpoena, accused lacked standing to object where: appellant was neither deprived of a right nor hindered in presenting his case; appellant and his counsel attended the Article 32; appellant had full notice of the witnesses against him and did not object to his wife’s testimony at the Article 32; appellant had the opportunity to confront his wife and did cross-examine her at the Article 32; and the testimony of the wife at the Article 32 investigation was reliable

Trial Stages: Pretrial: Investigations (Article 32)

1. where an accused has sufficiently important, legally-cognizable interests in the materials or testimony sought, and thereby has standing, there is no reason why a third-party challenge either to a subpoena duces tecum or a subpoena ad testificandum could not be raised during an Article 32 investigation
2. standing to object to a subpoena duces tecum or a subpoena ad testificandum during an Article 32 investigation exists when the actions of the government impact upon the reliability of the evidence presented against an accused at trial, e.g., coerced confessions, unlawful command influence, interference with the rights of confrontation or cross-examination, and interference with the right to present evidence
3. where testimony of accused’s wife at Article 32 investigation was secured by means of an illegally ordered German subpoena, accused lacked standing to object where: appellant was neither deprived of a right nor hindered in presenting his case; appellant and his counsel attended the Article 32; appellant had full notice of the witnesses against him and did not object to his wife’s testimony at the Article 32; appellant had the opportunity to confront his wife and did cross-examine her at the Article 32; and the testimony of the wife at the Article 32 investigation was reliable