Production of witnesses and evidence

(a) In general. The prosecution and defense and the court-martial shall have equal opportunity to obtain witnesses and evidence, subject to the limitations set the benefit of forth compulsory process. (b) Right to witnesses. in R.C.M. 701, including (1) On the merits or on interlocutory questions. 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 testify witness likelihood of in person; to significant interference with military operational deployment, mission accomplishment, or essential training; and, for child witnesses, the traumatic effect of providing in-court testimony the (2) On sentencing. Each party is entitled to the production of a witness whose testimony on sentencing is required under R.C.M. 1001(f). (3) Unavailable witness. 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. (c) Determining which witnesses will be produced. (1) Witnesses for the prosecution. Trial counsel shall obtain the presence of witnesses whose testimony trial counsel considers relevant and necessary for the prosecution. (2) Witnesses for the defense. (A) Request. The defense shall submit to trial counsel a written list of witnesses whose production by the Government the defense requests. (B) Contents of request. (i) Witnesses on merits or interlocutory questions. 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. (ii) Witnesses on sentencing. 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). (C) Time of request. 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. (D) Determination. 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. (d) Employment of expert witnesses and consultants. for (1) Experts the prosecution. 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 in accordance with the expert for funding of regulations prescribed by the Secretary concerned. (2) Experts for the defense. When the employment of a defense expert witness or consultant is considered necessary, the defense shall submit a request for funding of the expert in accordance with regulations prescribed by the Secretary concerned. (A) After referral of charges, a denied 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— (i) in the case of an expert witness, whether the testimony is relevant and necessary; and (ii) in the case of an expert consultant, whether the assistance is necessary for an adequate defense. II-45 (B) If the military judge grants a motion for 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 they are entitled under subparagraph (g)(3)(E) of this rule. (3) Review by military judge. to which those (A) A request for an expert witness or consultant denied by the convening authority may be renewed after referral of the charges before the military judge who shall determine— (i) in the case of an expert witness, whether the testimony of the expert is relevant and necessary, and, if so, whether the Government has provided or will provide an adequate substitute; or (ii) in the case of an expert consultant, whether the assistance of the expert is necessary for an adequate defense. (B) If the military judge grants a motion for employment of an expert or finds that the Government is required to provide a substitute, the proceedings shall be abated if the Government fails to comply with the ruling. In the absence of advance authorization, an expert witness may not be paid fees other than those to which they are entitled under subparagraph (g)(3)(E). (e) Right to evidence. (1) In general. Each party is entitled to the is relevant and production of evidence which necessary. (2) Unavailable if such evidence evidence. Notwithstanding paragraph (e)(1), a party is not entitled to the production of evidence which is destroyed, lost, or to compulsory process. otherwise not subject However, 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. (f) Determining what evidence will be produced. The to a procedures determination of what evidence will be produced, in subsection (c) shall apply II-46 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. (g) Procedures for production of witnesses and evidence. (1) Military witnesses. The attendance of a military witness may be obtained by notifying the commander of the witness of the time, place, and date the presence the of commander to issue any necessary orders to the witness. is required and requesting the witness (2) Evidence under the control of the Government. 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. (3) Civilian witnesses and evidence not under the control of the Government—subpoenas. (A) In general. The presence of witnesses not on active duty and evidence not under control of the Government may be obtained by subpoena. (B) Contents. 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. (C) Investigative subpoenas. (i) In general. 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 in the subpoena or for accordance with an order issued by the military judge under R.C.M. 309(b). inspection issued (ii) Subpoenas for personal or confidential information about a victim. After preferral, a subpoena requiring the production of personal or confidential to issue a information about a victim named in a specification may be served on an individual or organization by those authorized subpoena under subparagraph (D) or with the consent of the victim. Before issuing a subpoena under this subparagraph and unless there are exceptional circumstances, the victim must be given notice so that the victim can move for relief under subparagraph (g)(3)(G) or otherwise object. (G) Relief. If either a person subpoenaed or a victim named in a specification whose personal and confidential information has been subpoenaed under subparagraph (g)(3)(C)(ii) of this rule requests relief is unreasonable, on grounds 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— that compliance (i) order that the subpoena be modified or (D) Who may issue. A subpoena may be issued by quashed, as appropriate; or (i) the summary court-martial; (ii) the trial counsel of a general or special court- (ii) order the person to comply with the subpoena. martial; (H) Neglect or refusal to appear or produce (iii) the president of a court of inquiry; (iv) an officer detailed to take a deposition; or (v) 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. (E) Service. 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’ 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. (F) Place of service. (i) In general. A subpoena may be served at any its Territories, the United States, place within Commonwealths, or possessions. (ii) Foreign territory. 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. (iii) Occupied territory. In occupied enemy territory, the appropriate commander may compel the attendance of civilian witnesses located within the occupied territory. evidence. (i) Issuance of warrant of attachment. 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. (ii) Requirements. 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. (iii) Form. A warrant of attachment shall be written. All documents in support of the warrant of attachment shall be attached to the warrant, together with any charge sheets and convening orders, if applicable. (iv) Execution. 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 II-47 released. (b) Warrant procedures. (v) Definition. For purposes of clause (g)(3)(H)(i) “military judge” does not include a summary court-martial. (4) Preservation requests. In the case of evidence under control of the Government as well as evidence not under control of the Government, the person seeking production of the evidence may include with any request for evidence or subpoena a request that the custodian of the evidence take all necessary steps to preserve specifically described records and other evidence in its possession until such time as they may be produced or inspected by the parties. Rule 703A. Warrant or order for wire or electronic communications (a) In general. A military judge detailed in accordance with Article 26 or Article 30a, may, upon written application by a federal law enforcement officer, trial the counsel, or other authorized counsel Government in connection with an ongoing investigation of an offense or offenses under the UCMJ, issue one or more of the following: for (1) A warrant for the disclosure by a provider of electronic communication service of the contents of any wire or electronic communication. (2) A warrant for the disclosure by a provider of remote computing service of the contents of any wire or electronic communication that is held or maintained on that service— (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing. (3) A warrant or order for the disclosure by a provider of electronic communication service or remote computing service of a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications). II-48 (1) Probable cause required. A military judge shall issue a warrant authorizing the search for and seizure of information specified in subsection (a) of this rule if— (A) The federal law enforcement officer, trial counsel, or other authorized counsel the Government applying for the warrant presents an affidavit or sworn testimony, subject to examination by the military judge, in support of the application; and for (B) Based on the affidavit or sworn testimony, the military judge determines that there is probable cause to believe that the information sought contains evidence of a crime. (2) Issuing the warrant. The military judge shall issue the warrant to the federal law enforcement officer, trial counsel, or other authorized counsel for the Government who applied for the warrant. (3) Contents of the warrant. The warrant shall identify the property to be searched, identify any property or other information to be seized, and designate the military judge to whom the warrant must be returned. (4) Executing the warrant. The presence of the federal law enforcement officer, trial counsel, or other authorized counsel for the Government identified in the warrant shall not be required for service or execution of a search warrant issued in accordance with this rule requiring disclosure by a provider of electronic remote computing service of the contents of communications or records or other information pertaining to a subscriber to or customer of such service. communications service or (5) Quashing or modifying the warrant. A military judge issuing a warrant under subsection (a), on a motion made promptly by the service provider, may quash or modify such warrant, if the warrant is determined to be unreasonable or oppressive or prohibited by law. (c) Order procedures. (1) A military judge shall issue an order authorizing the disclosure of information specified in paragraph (a) (3) of this rule if the federal law enforcement officer, trial counsel, or other authorized counsel for the Government applying for the order offers specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing criminal investigation. (2) Quashing or modifying order. A military judge issuing an order under paragraph (c)(1) of this rule, on a motion made promptly by the service provider, may quash or modify such order, if the order is determined to be unreasonable, oppressive, or prohibited by law. (d) Non-disclosure orders. commanding a provider of (1) A federal law enforcement officer, trial counsel, or other authorized counsel for the Government acting under this rule may apply to a military judge for an order electronic communications service or remote computing service to whom a warrant or order under this rule is directed, for such period as judge deems appropriate, not to notify any other person of the existence of the warrant or order. The military judge shall issue the order if the military judge determines that there is reason to believe that notification of the existence of the warrant or order will result in an adverse result described in paragraph (d)(2) of this rule. the military (2) An adverse result for purposes of paragraph (d)(1) of this rule is— (A) endangering the life or physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or (E) jeopardizing otherwise seriously an investigation or unduly delaying a trial. (e) No cause of action against a provider disclosing information under this rule. As provided under 18 U.S.C. § 2703(e), no cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a warrant or order under this rule. (f) Requirement to preserve evidence. To the same extent as provided in 18 U.S.C. § 2703(f)— (1) A provider of wire or electronic communication services or a remote computing service, upon the request of a federal law enforcement officer, trial counsel, or other authorized counsel the Government, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of an order or other process; and for (2) Shall retain such records and other evidence for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity. (g) Definition. As used in this rule, the term “federal law enforcement officer” includes an employee of the Army Criminal Investigation Command, the Naval Criminal Investigative Service, the Air Force Office of Special the Coast Guard Investigative Service who has authority to request a search warrant. Investigations, or