Forms of Grants of Immunity

In any case that a military witness is granted transactional immunity, the GCM CA executes a written grant in the form set forth in the JAG Manual, appendix A-1-i(1). In any case that a witness is granted testimonial immunity, the GCM CA executes a written grant in the form set forth in the JAG Manual, appendix A-1-i(2).

REQUEST FOR INDIVIDUAL MILITARY COUNSEL AND WITNESSES

An accused has the right to request representation by a military counsel of his or her own choosing at an SPCM or a GCM. The accused also has the right to request any witnesses desired for his or her defense to be made available for the court-martial.

Individual Military Counsel

An accused has the right to be represented before a GCM or an SPCM by civilian counsel and either by the military counsel detailed to him or her or by military counsel of the accused's own selection, if reasonably available. An accused may request a determination of the availability of only one individual military counsel at a time.

A request for a specific individual military counsel should be in writing, showing the duties and location of the requested counsel, if known. The request must clearly state whether there is an existing attorney-client relationship between the accused and the requested military counsel regarding the charge(s) in question. The request also must indicate whether the requested military counsel has any unique or special qualifications pertinent to the case and specify those qualifications in the request. The accused or the detailed DC makes the request and submits it through the TC, if any, to the CA.

If the requested military counsel is a member of the Army, Air Force, Coast Guard, or Navy and there is no claim of an existing authorized attorney-client relationship regarding the charge(s) in question, the CA will promptly deny the request and inform the accused in writing. In all other cases, the CA sends the request to the commander of the requested counsel. For counsel assigned to a naval legal service office (NLSO) detachment, the commander of such counsel is the CO of the cognizant NLSO.

The CA provides that authority with the following information: (1) the nature and complexity of the charges and legal issues involved in the case; (2) the estimated duration of the necessary absence (travel, preparation, and participation in the proceeding); (3) the experience level and any special or unique qualifications of the detailed DC; and (4) other information or comments that are appropriate.

The commander of the requested military counsel determines whether such counsel will be reasonably available. In making that determination, the commander assesses the impact upon the command should the requested counsel be made available. The commander may consider, among others, the following factors: (1) the anticipated duties and workload of the requested military counsel including authorized leave; (2) the estimated duration of the necessary absences; (3) any unique or special qualifications relevant to the proceedings possessed by the requested counsel; (4) the ability of other counsel to assume the duties of the requested counsel; (5) the nature and complexity of the charges or legal issues involved in the proceedings; (6) the experience level; and (7) any information or comments of the CA. If a determination of unavailability is made, the reasons are set forth in writing and provided to the CA and the accused. The decision whether a requested military counsel will be available to act as an individual military counsel is an administrative determination within the sole discretion of the commander of the requested counsel.

If a determination of unavailability is made regarding a requested individual military counsel, the accused may appeal that decision to the immediate superior in command of the authority who made the determination, via that authority. The basis for such appeal will normally be an abuse of discretion. If, however, the accused claims that the person who made that determination did not have the authority to do so, or did so on the basis of inaccurate or incomplete information, the reviewing authority considers those allegations and, if warranted, directs corrective action. Prompt review of the appeal is required and, after a decision is made, the commander of the requested military counsel, the CA, and the accused are promptly informed of the decision.

Witnesses

The Sixth Amendment to the United States Constitution provides "In all criminal prosecutions, the accused shall enjoy the right . . . . to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor. . . ." The TC and the DC have equal opportunity to obtain witnesses and other evidence.

The TC must take timely and appropriate action to provide for the attendance of the witnesses who have personal knowledge of the fact at issue in the case for both the prosecution and defense.

If the TC is satisfied that a prosecution witness on the merits is both relevant and necessary, then the CA should produce the witness for trial. Although the decision belongs to the CA, failure to produce these witnesses may have a harmful impact on the outcome of the case.

The TC arranges for the presence of any witness listed by the defense unless the TC contends that the witness' production is not required under the rules for courts-martial. If the TC contends production is not required, the defense can renew the matter at trial before the military judge.

The defense request for the personal appearance of a witness on the merits must be submitted in writing together with a statement signed by counsel requesting the witness. The request must contain (1) the telephone number, if known, as well as the location or address of the witness and (2) a synopsis of the expected testimony of the witness that is enough to show its relevance and necessity.

In determining whether the personal appearance of a defense witness requested on the merits is necessary, the CA and/or the military judge refers to the following factors:

The issues involved in the case

The importance of the requested witness to these issues (Does the testimony of the witness tend to prove or disprove a fact in issue in the case?)

The total impact of the witness' testimony in light of other witnesses

The availability of any acceptable evidentiary substitutes for the production of the witness

If the military judge determines that a defense witness is required to be present to testify at a trial either on the merits or at presentencing, the government produces the witness (at government expense) or dismisses the proceedings. The government may secure the attendance of a witness as follows.

MILITARY WITNESSES.- Military witnesses in the same location as the trial or other proceedings may be informally requested to attend through their respective COs. If a formal written request is required, it should be sent through the regular channels.

In the event that a military witness is located at a place other than the location of the trial, and travel at government expense is required, the appropriate superior will be requested to issue the necessary orders. Normally, the CA will contact the command that the witness is attached to and will furnish the accounting data for the witness. The cost of travel and per diem of military personnel and civilian employees of the Department of the Navy is charged to the operation and maintenance allotment that supports temporary additional duty (TAD) travel for the CA of the court-martial.

It is a violation of Article 92, UCMJ, for a military witness to refuse to appear at trial after having received a lawful order to do so.

CIVILIAN WITNESSES.- Like a military witness, a civilian witness can be given an order to attend a court-martial. This order is called a subpoena. Technically, this subpoena is from the President of the United States to the witness. The TC of a court-martial is authorized to issue a subpoena, in the President's name, to any civilian who is a material witness and is within any part of the United States, its territories, or its possessions. The subpoena is prepared in duplicate on DD Form 453. Figure 6-15 is an example of a properly prepared subpoena. Instructions for completion of the form are contained on the form itself.

The 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 a subpoena. Their presence may be obtained through cooperation of the host nation.

Warrant of Attachment.- A warrant of attachment may be necessary to compel a witness to appear. It may, however, be issued only upon probable cause to believe that the witness was duly served with a properly issued subpoena, that appropriate fees and mileage were tendered to the witness, that the witness is material, that the witness refused or willingly neglected to appear at the time and place specified on the subpoena, and that no valid excuse reasonably appears for the witness' failure to appear. All documents in support of the warrant are attached, together with the charge sheet and convening order.

Travel Order.- Civilian witnesses who are employees of the Department of Defense may be directed to appear as a witness in a court-martial as an incident of their employment. If so, appropriate orders may be issued for that purpose. See figure 6-16. The travel order must accompany the service of the subpoena in one original and two copies.

Payments.- In processing a payment to a civilian witness, you will have to maintain close coordination with the disbursing office. While disbursing personnel are responsible for computing and paying travel money to witnesses, the witness may look to you, as an LN, to make sure he or she is properly paid. You may have to assist the witness in filling out his or her claim for travel pay and fees and assemble all the necessary paper work before sending the witness to disbursing for payment. Therefore, if it becomes apparent that you will have a witness to be paid, you should make sure you have had advance contact with disbursing and administrative personnel to know what paper work they require to be sure smooth payments are made when a witness presents his or her claim.

Messing and Berthing.- You should make advance arrangements for a witness needing messing and berthing. A military witness is normally berthed in the bachelor enlisted quarters (BEQ) or bachelor officer quarters (BOQ), as appropriate. A civilian witness may be berthed in the BOQ or in civilian facilities at his or her own expense, if available. If possible, you should contact a civilian witness in advance to determine his or her desire concerning messing and berthing.