Production of statements of witnesses

(a) Motion for production. After a witness other than the accused has testified on direct examination, the military judge, on motion of a party who did not call the witness, shall order the party who called the witness to produce, for examination and use by the moving party, any statement of the witness that relates to the subject matter concerning which the witness has testified, and that is: (1) In the case of a witness called by trial counsel, in the possession of the United States; or (2) In the case of a witness called by the defense, in the possession of the accused or defense counsel. (b) Production of entire statement. If the entire contents of the statement relate to the subject matter concerning which the witness has testified, the military judge shall order that the statement be delivered to the moving party. (c) Production of excised statement. If the party who called the witness claims that the statement contains matter that does not relate to the subject matter concerning which the witness has testified, the military judge shall order that it be delivered to the military judge. Upon inspection, the military judge shall excise the portions of the statement that do not relate to the subject matter concerning which the witness has testified, and shall order that the statement, with such material excised, be delivered to the moving party. Any portion of a statement that is withheld from an accused over objection shall be preserved by trial counsel, and, in the event of a conviction, shall be made available to the the purpose of determining the correctness of the decision to excise the portion of the statement. (d) Recess for examination of the statement. Upon delivery of the statement to the moving party, the military judge may recess the trial for the examination of the statement and preparation for its use in the trial. (e) Remedy for failure to produce statement. reviewing authorities for (1) Party refusal to comply. If the other party elects not to comply with an order to deliver a statement to the moving party, the military judge shall order that the testimony of the witness be disregarded by the trier of fact and that the trial proceed, or, if it is the trial counsel who elects not to comply, shall declare a mistrial if required in the interest of justice. (2) Exception. In the event that the other party cannot comply with this rule because the statement is lost, and can prove, by a preponderance of evidence, that the loss of the witness statement was not attributable to bad faith or gross negligence, the military judge may exercise the sanctions set forth in paragraph (e)(1) of this rule only if— (A) the statement is of such central importance to an issue that it is essential to a fair trial, and (B) there is no adequate substitute for the statement. (f) Definition. As used in this rule, a “statement” of a witness means: (1) A written statement made by the witness that is signed or otherwise adopted or approved by the witness; (2) A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a recording or a transcription thereof; or (3) A statement, however taken or recorded, or a transcription thereof, made by the witness to a federal grand jury. 914A. Use of remote live testimony of a child (a) General procedures. A child shall be allowed to testify out of the presence of the accused after the military judge has determined that the requirements of Mil. R. Evid. 611(d)(3) have been satisfied. The procedure used to take such testimony will be determined by the military judge based upon the exigencies of the situation. At a minimum, the following procedures shall be observed: (1) The witness shall testify from a remote location outside the courtroom; (2) Attendance at the remote location shall be limited to the child, counsel for each side (not including an accused pro se), equipment operators, and other persons, such as an attendant for the child, whose presence is deemed necessary by the military judge; (3) Sufficient monitors shall be placed in the courtroom to allow viewing and hearing of the II-77 testimony by the military judge, the accused, the members, the court reporter, and the public; (4) The voice of the military judge shall be transmitted into the remote location to allow control of the proceedings; and (5) The accused shall be permitted private, contemporaneous communication with his counsel. (b) Definition. As used in this rule, “remote live testimony” includes, but is not limited to, testimony by videoteleconference, closed circuit television, or similar technology. (c) Prohibitions. The procedures described in this rule shall not be used where the accused elects to absent himself from the courtroom pursuant to R.C.M. 804(c)(1). Rule 914B. Use of remote testimony (a) General procedures. The military judge shall determine the procedures used to take testimony via remote means. At a minimum, all parties shall be able to hear each other, those in attendance at the remote site shall be identified, and the accused shall be permitted private, contemporaneous communication with his counsel. (b) Definition. As used in this rule, testimony via “remote means” includes, but is not limited to, testimony by videoteleconference, closed circuit television, telephone, or similar technology.