The prosecution, defense, and court-martial shall have equal opportunity to obtain witnesses and evidence, subject to the limitations set forth in R.C.M. 701, including the benefit of compulsory process.

See also R.C.M. 801(c) concerning the opportunity of the court-martial to obtain witnesses and evidence.

Each party is entitled to the production of any witness whose testimony on a matter in issue on the merits or on an interlocutory question would be relevant and necessary. With the consent of both the accused and Government, the military judge may authorize any witness to testify via remote means. Over a party’s objection, the military judge may authorize any witness to testify on interlocutory questions via remote means or similar technology if the practical difficulties of producing the witness outweigh the significance of the witness’ personal appearance (although such testimony will not be admissible over the accused’s objection as evidence on the ultimate issue of guilt). Factors to be considered include, but are not limited to: the costs of producing the witness; the timing of the request for production of the witness; the potential delay in the interlocutory proceeding that may be caused by the production of the witness; the willingness of the witness to testify in person; the likelihood of significant interference with military operational deployment, mission accomplishment, or essential training; and, for child witnesses, the traumatic effect of providing in-court testimony

See Mil. R. Evid. 401 concerning relevance. Relevant testimony is necessary when it is not cumulative and when it would contribute to a party’s presentation of the case in some positive way on a matter in issue. A matter is not in issue when it is stipulated as a fact. The procedures for receiving testimony via remote means and the definition thereof are contained in R.C.M. 914B. An issue may arise as both an interlocutory question and a question that bears on the ultimate issue of guilt. See R.C.M. 801(e)(5). In such circumstances, this rule authorizes the admission of testimony by remote means or similar technology over the accused’s objection only as evidence on the interlocutory question. In most instances, testimony taken over a party’s objection will not be admissible as evidence on the question that bears on the ultimate issue of guilt; however, there may be certain limited circumstances where the testimony is admissible on the ultimate issue of guilt. Such determinations must be made based upon the relevant rules of evidence.

Each party is entitled to the production of a witness whose testimony on sentencing is required under R.C.M. 1001(f).

Notwithstanding paragraphs (b)(1) and (2) of this rule, a party is not entitled to the presence of a witness who is unavailable within the meaning of Mil. R. Evid. 804(a). However, if the testimony of a witness who is unavailable is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such testimony, the military judge shall grant a continuance or other relief in order to attempt to secure the witness’ presence or shall abate the proceedings, unless the unavailability of the witness is the fault of or could have been prevented by the requesting party.

Trial counsel shall obtain the presence of witnesses whose testimony trial counsel considers relevant and necessary for the prosecution.

The defense shall submit to trial counsel a written list of witnesses whose production by the Government the defense requests.

A list of witnesses whose testimony the defense considers relevant and necessary on the merits or on an interlocutory question shall include the name, telephone number, if known, and address or location of the witness such that the witness can be found upon the exercise of due diligence and a synopsis of the expected testimony sufficient to show its relevance and necessity.

A list of witnesses wanted for presentencing proceedings shall include the name, telephone number, if known, and address or location of the witness such that the witness can be found upon the exercise of due diligence, a synopsis of the testimony that it is expected the witness will give, and the reasons why the witness’ personal appearance will be necessary under the standards set forth in R.C.M. 1001(f).

A list of witnesses under this subsection shall be submitted in time reasonably to allow production of each witness on the date when the witness’ presence will be necessary. The military judge may set a specific date by which such lists must be submitted. Failure to submit the name of a witness in a timely manner shall permit denial of a motion for production of the witness, but relief from such denial may be granted for good cause shown.

Trial counsel shall arrange for the presence of any witness listed by the defense unless trial counsel contends that the witness’ production is not required under this rule. If trial counsel contends that the witness’ production is not required by this rule, the matter may be submitted to the military judge. If the military judge grants a motion for a witness, trial counsel shall produce the witness or the proceedings shall be abated.

When significant or unusual costs would be involved in producing witnesses, the trial counsel should inform the convening authority, as the convening authority may elect to dispose of the matter by means other than a court-martial. See R.C.M. 906(b)(7). See also R.C.M. 905(j).

When the employment of a prosecution expert witness or consultant is considered necessary, counsel for the Government shall, in advance of employment of the expert, and with notice to the defense, submit a request for funding of the expert in accordance with regulations prescribed by the Secretary concerned.

See Mil. R. Evid. 702; 706.

When the appointment or employment of a defense expert witness or consultant is considered necessary, the defense may submit a request for the appointment or funding of the expert in accordance with regulations prescribed by the Secretary concerned.

After referral of charges, a defense request for an expert witness or consultant may be raised before the military judge. Motions for expert consultants may be raised ex parte . The military judge shall determine:

in the case of an expert witness, whether the testimony is relevant and necessary;

in the case of an expert consultant, whether the assistance is necessary for an adequate defense.

If the military judge grants a motion for the appointment or employment of a defense expert witness or consultant, the expert witness or consultant, or an adequate substitute, shall be provided in accordance with regulations prescribed by the Secretary concerned. In the absence of advance approval by an official authorized to grant such approval under the regulations prescribed by the Secretary concerned, expert witnesses and consultants may not be paid fees other than those to which they are entitled under R.C.M. 207(g)(3)(E).

In addition to the requirements of R.C.M. 701(a)(3), the Government shall provide the defense a written summary of the expected testimony from the expert witness.

After referral of charges, in addition to the requirements of R.C.M. 701(b)(1), the defense shall provide the Government a written summary of the expected testimony from the expert witness.

The military judge shall set a date upon which notices under R.C.M. 703(d)(3)(A) are due to the opposing party.

If at any time it is brought to the attention of the military judge that a party has failed to comply with this rule, the military judge may take one or more of the following actions:

Order the required notice;

Order the party to permit discovery;

Grant a continuance;

Prohibit the party from introducing evidence, calling a witness, or raising a defense not disclosed; and

Enter such other order as is just under the circumstances.

See R.C.M. 701(g)(3) Discussion. Notice will include the name and contact information for the expert consultant or expert witness.

Each party is entitled to the production of evidence which is relevant and necessary.

Relevance is defined by Mil. R. Evid. 401. Relevant evidence is necessary when it is not cumulative and when it would contribute to a party’s presentation of the case in some positive way on a matter in issue. A matter is not in issue when it is stipulated as a fact. The discovery and introduction of classified or other government information is controlled by Mil. R. Evid. 505 and 506.

Notwithstanding paragraph (e)(1), a party is not entitled to the production of evidence which is destroyed, lost, or otherwise not subject to compulsory process. However, if such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party.

The procedures in subsection (c) shall apply to a determination of what evidence will be produced, except that any defense request for the production of evidence shall list the items of evidence to be produced and shall include a description of each item sufficient to show its relevance and necessity, a statement where it can be obtained, and, if known, the name, address, and telephone number of the custodian of the evidence.

The attendance of a military witness may be obtained by notifying the commander of the witness of the time, place, and date the presence of the witness is required and requesting the commander to issue any necessary orders to the witness.

When military witnesses are located near the court-martial, their presence can usually be obtained through informal coordination with them and their commander. If the witness is not near the court-martial and attendance would involve travel at government expense, or if informal coordination is inadequate, the appropriate superior should be requested to issue the necessary order. If practicable, a request for the attendance of a military witness should be made so that the witness will have at least 48 hours’ notice before starting to travel to attend the court-martial. The attendance of persons not on active duty should be obtained in the manner prescribed in R.C.M. 703(g)(3).

Evidence under the control of the Government may be obtained by notifying the custodian of the evidence of the time, place, and date the evidence is required and requesting the custodian to send or deliver the evidence.

The presence of witnesses not on active duty and evidence not under control of the Government may be obtained by subpoena.

A subpoena is not necessary if the witness appears voluntarily at no expense to the United States. Civilian employees of the Department of Defense may be directed by appropriate authorities to appear as witnesses in courts-martial as an incident of their employment. Appropriate travel orders may be issued for this purpose. A subpoena may not be used to compel a civilian to travel outside the United States and its territories. A witness must be subject to United States jurisdiction to be subject to a subpoena. Foreign nationals in a foreign country are not subject to subpoena. Their presence may be obtained through cooperation of the host nation.

A subpoena shall state the command by which the proceeding or investigation is directed, and the title, if any, of the proceeding. A subpoena shall command each person to whom it is directed to attend and give testimony at the time and place specified therein, or to produce evidence—including books, papers, documents, data, writings, or other objects or electronically stored information designated therein at the proceeding or at an earlier time for inspection by the parties. A subpoena shall not command any person to attend or give testimony at an Article 32 preliminary hearing.

A subpoena normally is prepared, signed, and issued in duplicate on official forms. See DD Form 453 for a template subpoena with certificate of service.

In the case of a subpoena issued before referral for the production of evidence for use in an investigation, the subpoena shall command each person to whom it is directed to produce the evidence requested for inspection by the Government counsel who issued the subpoena or for inspection in accordance with an order issued by the military judge under R.C.M. 309(b).

A pre-referral investigative subpoena may be issued in accordance with R.C.M. 309 or subsection (g)(3)(D)(v) of this rule for the production of evidence not under control of the government for use at an Article 32 preliminary hearing. See also R.C.M. 405.

After preferral, a subpoena requiring the production of personal or confidential information about a victim named in a specification may be served on an individual or organization by those authorized to issue a subpoena under R.C.M. 703(g)(3)(E) or with the consent of the victim. Before issuing a subpoena under this provision and unless there are exceptional circumstances, the victim must be given notice so that the victim can move for relief under R.C.M 703(g)(3)(I) or otherwise object.

The term “victim” has the same meaning as the term “victim of an offense under this chapter” in Article 6b. A subpoena requiring the production of personal or confidential information of a named victim may be served on individuals, such as medical professionals, counselors, employers, or journalists, or upon an organization, such as a medical facility, school, treatment center, financial institution, news organization, or insurance company. Subpoenas to which R.C.M. 703(g)(3)(C) applies may also be subject to additional statutory requirements, e.g. , the Right to Financial Privacy Act, 12 USC §§ 3401-3422, which applies to financial records. Notice may be given to the victim or to a victim’s representative such as a representative under R.C.M. 801(a)(6) or legal counsel. This provision is drawn from Fed. R. Crim. P. 17(c)(3) with differences to account for military justice circumstances. For a discussion of “exceptional circumstances,” see Fed. R. Crim. P. 17 (Advisory Committee Notes, 2008 Amendments).

Upon request by the defense after referral, including an ex parte request, the military judge shall issue a subpoena to compel the production of witnesses if the witness’s testimony is determined to be relevant and necessary.

A subpoena may be issued by:

the military judge, after referral;

the summary court-martial;

the trial counsel of a general or special court-martial;

When detailed to a general or special court-martial, a special trial counsel may issue a subpoena pursuant to R.C.M. 703(g)(3)(E)(iii). See R.C.M. 103(26).

the president of a court of inquiry;

an officer detailed to take a deposition; or

in the case of a pre-referral investigative subpoena, a military judge or, when issuance of the subpoena is authorized by a general court-martial convening authority, the detailed trial counsel or counsel for the Government.

If practicable, a subpoena should be issued in time to permit service at least 24 hours before the time the witness will have to travel to comply with the subpoena. Informal service. Unless formal service is advisable, the person who issued the subpoena may mail it to the witness in duplicate, enclosing a postage-paid envelope bearing a return address, with the request that the witness sign the acceptance of service on the copy and return it in the envelope provided. The return envelope should be addressed to the person who issued the subpoena. The person who issued the subpoena should include with it a statement to the effect that the rights of the witness to fees and mileage will not be impaired by voluntary compliance with the request and that a voucher for fees and mileage will be delivered to the witness promptly on being discharged from attendance. Formal service. Formal service is advisable whenever it is anticipated that the witness will not comply voluntarily with the subpoena. Appropriate fees and mileage must be paid or tendered. See Article 47. If formal service is advisable, the person who issued the subpoena must assure timely and economical service. That person may do so by serving the subpoena personally when the witness is in the vicinity. When the witness is not in the vicinity, the subpoena may be sent in duplicate to the commander of a military installation near the witness. Such commanders should give prompt and effective assistance, issuing travel orders for their personnel to serve the subpoena when necessary. Service should ordinarily be made by a person subject to the UCMJ. The duplicate copy of the subpoena must have entered upon it proof of service as indicated on the form and must be promptly returned to the person who issued the subpoena. If service cannot be made, the person who issued the subpoena must be informed promptly. A stamped, addressed envelope should be provided for these purposes. Hardship means any situation which would substantially preclude reasonable efforts to appear that could be solved by providing transportation or fees and mileage to which the witness is entitled for appearing at the hearing in question.

Notice shall be given to all parties for any subpoena issued for a witness post-referral unless, for good cause, the military judge issues a protective order.

A subpoena may be served by the person authorized by this rule to issue it, a United States Marshal, or any other person who is not less than 18 years of age. Service shall be made by delivering a copy of the subpoena to the person named and, in the case of a subpoena of an individual to provide testimony, by providing to the person named travel orders and a means for reimbursement for fees and mileage as may be prescribed by the Secretary concerned, or in the case of hardship resulting in the subpoenaed witness’s inability to comply with the subpoena absent initial Government payment, by providing to the person named travel orders, fees, and mileage sufficient to comply with the subpoena in rules prescribed by the Secretary concerned.

A subpoena may be served at any place within the United States, its Territories, Commonwealths, or possessions.

A warrant of attachment (DD Form 454) may be used when necessary to compel a witness to appear or produce evidence under this rule. A warrant of attachment is a legal order addressed to an official directing that official to have the person named in the order brought before a court. Subpoenas issued under R.C.M. 703 are federal process and a person not subject to the UCMJ may be prosecuted in a federal civilian court under Article 47 for failure to comply with a subpoena issued in compliance with this rule and formally served. Failing to comply with such a subpoena is a felony offense, and may result in a fine or imprisonment, or both, at the discretion of the district court. The different purposes of the warrant of attachment and criminal complaint under Article 47 should be borne in mind. The warrant of attachment, available without the intervention of civilian judicial proceedings, has as its purpose the obtaining of the witness’ presence, testimony, or documents. The criminal complaint, prosecuted through the federal civilian courts, has as its purpose punishment for failing to comply with process issued by military authority. It serves to vindicate the military interest in obtaining compliance with its lawful process. A general court-martial convening authority may only issue a warrant of attachment to compel compliance with an investigative subpoena issued prior to referral. See Article 46(d).

In foreign territory, the attendance of civilian witnesses and evidence not under the control of the Government may be obtained in accordance with existing agreements or, in the absence of agreements, with principles of international law.

In occupied enemy territory, the appropriate commander may compel the attendance of civilian witnesses located within the occupied territory.

In executing a warrant of attachment, no more force than necessary to bring the witness to the court-martial, deposition, or court of inquiry may be used.

If a person subpoenaed requests relief on grounds that compliance is unreasonable, oppressive, or prohibited by law, the military judge or, if before referral, a military judge detailed under Article 30a, shall review the request and shall—

order that the subpoena be modified or quashed, as appropriate; or

order the person to comply with the subpoena.

See RCM 703(g)(3)(C)(ii) regarding the ability of a victim named in a specification to move for relief or otherwise object under R.C.M. 703(g)(3)(I).

If the person subpoenaed neglects or refuses to appear or produce evidence, the military judge or, if before referral, a military judge detailed under Article 30a or a general court-martial convening authority, may issue a warrant of attachment to compel the attendance of a witness or the production of evidence, as appropriate.

A warrant of attachment may be issued only upon probable cause to believe that the witness or evidence custodian was duly served with a subpoena, that the subpoena was issued in accordance with these rules, that a means of reimbursement of fees and mileage, if applicable, was provided to the witness or advanced to the witness in cases of hardship, that the witness or evidence is material, that the witness or evidence custodian refused or willfully neglected to appear or produce the subpoenaed evidence at the time and place specified on the subpoena, and that no valid excuse is reasonably apparent for the witness’ failure to appear or produce the subpoenaed evidence.

A warrant of attachment shall be written. All documents in support of the warrant of attachment shall be attached to the warrant, together with the charge sheet and convening orders.

A warrant of attachment may be executed by a United States Marshal or such other person who is not less than 18 years of age as the authority issuing the warrant may direct. Only such non-deadly force as may be necessary to bring the witness before the court-martial or other proceeding or to compel production of the subpoenaed evidence may be used to execute the warrant. A witness attached under this rule shall be brought before the court-martial or proceeding without delay and shall testify or provide the subpoenaed evidence as soon as practicable and be released.

For purposes of R.C.M. 703(g)(3)(J)(i), “military judge” does not include a summary court-martial.