Chapter XXII.
Courts-Martial--Incidental Matters

Attendance of Witnesses--Preparation of Interrogatories and Taking of Depositions--
Employment of Experts--Expenses of Courts-Martial--Contempts

97. COURTS-MARTIAL--INCIDENTAL MATTERS--Attendance of Witnesses.

    1. Preliminary, general, and miscellaneous.--Every trial judge advocate of a general or special court-martial and every summary court-martial shall have power to issue the like process to compel witnesses to appear and testify which courts of the United States having criminal jurisdiction may lawfully issue, but such process shall run to any part of the United States, its Territories, and possessions. (A.W. 22.) Such process can not be issued for the purpose of compelling a witness to appear for preliminary examination.

       In this paragraph (97) the term "trial judge advocate" includes a summary court-martial unless the context otherwise indicates.

       The trial judge advocate will take timely and appropriate action with a view to the attendance at the trial of the witnesses who are to testify in person. He will not of his own motion take such action with respect to a witness for the prosecution unless satisfied that his testimony is material and necessary and that a deposition will, for any reason, not properly answer the purpose, or will involve equal or greater inconvenience or expense. Such action will be taken with respect to all witnesses requested by the defense, except that where there is reason to believe that the testimony of a witness so requested would be immaterial or unnecessary, or that a deposition would fully answer the purpose and involve less expense or inconvenience, the matter may be referred for decision to the appointing authority or to the court, according to whether the question arises before or after the trial commences. The trial judge advocate may consent to admit the facts expected from the testimony of a witness requested by the defense if the prosecution does not contest such facts or they are unimportant. An application for the attendance of a witness may sometimes be withdrawn if the trial judge advocate offers to enter into a stipulation as to the testimony of such witness. In connection with the subject of this subparagraph, see 97b (Warrant of attachment).

    2. Civilian witnesses.--Issue, Service, and Return of Subpoena.--A subpoena is prepared, signed, and issued in duplicate, as indicated herein, and on the form (W.D., A.G.O. Form No. 117).

If practicable, a subpoena will be issued at such time as will permit service to be made or accepted, at least 24 hours before the time the witness will have to start from home in order to comply with the subpoena. Where a subpoena requires the witness to bring with him a document or documents to be used in evidence, each document will be described in sufficient detail to enable the witness to identify it readily.

Unless he believes that formal service is advisable, the trial judge advocate will mail the subpoena in duplicate and a return addressed penalty envelope to the witness with a request that he sign the acceptance of service on one copy and return such copy in the penalty envelope. Such envelope should be addressed to the trial judge advocate of the court and not to the officer by name. The trial judge advocate may, and ordinarily should, include with such request a statement to the effect that the rights of the witness to fees and mileage will not be prejudiced by a compliance with the request.

Where formal service is or is believed to be necessary, the trial judge advocate will take appropriate action with a view to timely and economical service. For example, if the witness is near the station of the trial judge advocate he or some one detailed or designated by the commanding officer of such station may serve the subpoena; or if the witness is near some other military station the duplicate subpoenas may be inclosed in a suitable letter to the commanding officer of that station; or the duplicate subpoenas may be inclosed in a suitable letter to the commander of the corps area or similar command within which the witness resides or may be found. Any such commander or commanding officer will take appropriate action with a view to the prompt service of the subpoena by the most economical available means. Travel orders will be applied for when necessary. Service will ordinarily be made by a person subject to military law, but may legally be made by others. Service is made by personal delivery of one of the copies to the witness. The other copy, with proof of service made as indicated on the form (W.D., A.G.O. Form No. 117), will be promptly returned to the trial judge advocate. If service can not be made, the trial judge advocate will be promptly so informed. When use for it is probable, a return addressed penalty envelope, addressed to the trial judge advocate and not to the officer by name, may be sent to the person who is to serve the subpoena.

Neglect or Refusal to Appear.--See A.W. 23 down to, but excluding, the second proviso, and second subparagraph below (Warrant of attachment).

In order to maintain a prosecution under the part of A.W. 23 referred to, a person must not only be duly subpoenaed but be paid or tendered fees, including fee for one day's actual attendance, and mileage both ways "at the rates allowed to witnesses attending the courts of the United States." (A.W. 23.) Whenever such action appears to be advisable, appropriate steps will be taken by the trial judge advocate with a view to such payment or tender at the time of the service of the subpoena. See AR 354120. If an officer, charged with serving a subpoena, pays the necessary fees and mileage to a witness, taking a receipt therefor, he is entitled to reimbursement.

Warrant of Attachment.--In any case the trial judge advocate may properly consult the court as to the desirability of issuing an attachment under A.W. 22. He should consult the court before issuing a warrant of attachment for a witness desired by the defense, if, in his opinion, the evidence desired can be obtained in another manner, or if he is willing to admit that the witness would testify as stated by the defense.

Whenever it becomes necessary to issue a warrant of attachment (W.D., A.G.O. Form No. 119), the trial judge advocate will issue, direct, and deliver or send it for execution to an officer designated for the purpose by the commander of the proper corps area or other command.

As the arrest of a person under a warrant of attachment involves depriving him of his liberty, the authority for such action may be inquired into by a writ of habeas corpus. For this reason the warrant of attachment should be accompanied by the following papers to enable the officer to make a full return in case a writ of habeas corpus is served upon him: A copy of the charges in the case, including the order referring the charges for trial and copies of the orders appointing the court-martial, each sworn to be a full and true copy of the original by the trial judge advocate; the original subpoena, showing proof of service of same; and an affidavit of the trial judge advocate that the person being attached is a material witness in the case, that such person has failed and neglected to appear although sufficient time has elapsed for that purpose, and that no valid excuse has been offered for such failure to appear.

In executing such process it is lawful to use only such force as may be necessary to bring the witness before the court. Whenever the use of force is likely to be actually required and whenever travel or other orders are necessary, appropriate application to the proper commander will be made by the officer who is to execute the process.

For matters relating to habeas corpus proceedings in connection with attachments, see 153-157.

3. Military witnesses.--The attendance of persons in the military service stationed at the place of meeting of the court, or so near that no expense of transportation will be involved, will ordinarily be obtained by informal notice served by the trial judge advocate on the person concerned that his attendance as a witness is desired. If for any reason formal notice is required, the trial judge advocate will request the proper commanding officer to order the witness to attend; but if mileage is involved, the proper superior will be requested to issue the necessary order. The attendance of persons on the retired list, not assigned to active duty, should be obtained in the same manner as in cases of civilian witnesses not in Government employ. No travel order will be issued in such cases. If practicable, request for the attendance of military witnesses will be so made that the witness will have at least 24 hours' notice before starting to attend the meeting of the court.
98. COURTS-MARTIAL--INCIDENTAL MATTERS--Preparation of Interrogatories and Taking of Depositions.

    1. Preliminary, general, and miscellaneous.--For statutory provisions, see A.W. 25 and 26. For use of deposition in evidence, see 119a.

       Where the name of the person whose deposition is desired is unknown, he may be identified in the interrogatories and any accompanying papers by his office or position; e.g., "Commanding Officer, Company C, 27th Infantry"; "Cashier, Commercial National Bank, Fort Leavenworth, Kansas."

       In this paragraph (98), unless the context otherwise indicates, the term "trial judge advocate" includes a summary court-martial.

    2. Preparation of interrogatories.--The party desiring a deposition ordinarily submits to the opposite party the interrogatories he wishes the witness to answer; but he may submit them to the court, and the court, when it desires the deposition of a witness, may direct the trial judge advocate to submit appropriate interrogatories to the court. In any case all parties in interest will be given full opportunity to submit cross-interrogatories and additional interrogatories, direct and cross, as desired. Where the defense in a capital case submits interrogatories, cross-interrogatories may be submitted to the same extent as in a case not capital.

       If the interrogatories and cross-interrogatories are submitted to the court, objections on any ground known at the time will ordinarily be made and passed upon at that time. A wider latitude than usual should be allowed as to leading questions.

    3. Sending out interrogatories.--All interrogatories are entered upon the form (W.D., A.G.O. Form No. 118) as indicated by the notes and instructions thereon. According to circumstances, and having regard to economy, promptness, and the proper taking of the deposition,

the trial judge advocate may send the interrogatories to the officer of the military station nearest the witness; to a responsible person, preferably one competent to administer oaths; to a corps area, department, or other superior commander; to the witness himself; or to The Adjutant General. According to circumstances the interrogatories will be accompanied by such of the following as are advisable or necessary; a proper explanatory letter, an addressed return penalty envelope, subpoenas in duplicate, voucher for fees and mileage.

The return penalty envelope should be addressed to the trial judge advocate of the court and not to the officer by name. The subpoenas will, and the voucher will not, be signed; but both subpoenas and voucher will be completed to the extent permitted by the known facts, and the latter will be accompanied by the required number of copies of the orders appointing the court.

4. Action by officer receiving interrogatories.--When interrogatories are received by a military officer, he will take appropriate action with a view to the prompt and economical taking of the deposition by a competent person; the sending of the deposition to the trial judge advocate (addressed by office, not by name); and the payment of the necessary fees. Subject to limitations on his authority, he may, for example, send a suitable person to the residence of the witness; or arrange by mail or otherwise for the taking of the deposition; or, in the case of a civilian witness, subpoena him or arrange for his attendance without subpoena.

5. Suggestions for person taking deposition.--Before a witness gives his answers to the interrogatories they should be read and, if necessary, explained to him, or he should be permitted to read them over in order that his answers may be clear, full, and to the point. The person taking the deposition should not advise the witness how he should answer, but he should endeavor to see that the witness understands the questions and what is desired to be brought out by them, and that his answers are clear, full, and to the point.

   If a military officer takes a deposition, he will ordinarily complete and certify the voucher. When a deposition is taken by a civil officer, he should, if so requested, obtain and furnish with return of the deposition the data necessary for the completion of the witness voucher.

6. Action on receipt of deposition.--Upon receipt of the deposition the trial judge advocate will advise the accused or his counsel of that fact and will give them an opportunity to examine the deposition before the trial.

7. Depositions on oral interrogatories.--Depositions may be taken on oral interrogatories by consent of the parties or by direction of the court. The procedure in taking such depositions will conform generally

to that outlined above. However, instead of writing out the questions to be asked the witness, each party will indicate in a separate letter or memorandum the nature of the charges and the points desired to be covered in the examination of the witness. Whenever practicable the commanding officer to whom the papers are sent as contemplated by c above will, in addition to designating the person authorized by law to administer oaths to take the deposition, detail an officer to represent each side in propounding the questions.
99. COURTS-MARTIAL--INCIDENTAL MATTERS--Employment of Experts.--When the employment of an expert is necessary during a trial by court-martial, the trial judge advocate, in advance of the employment, will, on the order or permission of the court, request the appointing authority to authorize such employment and to fix the limit of compensation to be paid the expert. The request should, if practicable, state the compensation that is recommended by the prosecution and the defense. Where in advance of trial the prosecution or the defense knows that the employment of an expert will be necessary, application should be made to the appointing authority for authority to employ the expert, stating the necessity therefor and probable cost thereof.

100. COURTS-MARTIAL--INCIDENTAL MATTERS--Expenses of Courts-Martial, etc.--See AR 354120.

101. COURTS-MARTIAL--INCIDENTAL MATTERS--Contempts.--See A.W. 32.

     The conduct described in A.W. 32 constitutes a direct contempt. Indirect or constructive contempts (i.e., those not committed in the presence or immediate proximity of the court while it is in session), and the conduct and acts described or referred to in A.W. 23 are not included, but may be punishable under other provisions of law, such as, for instance, A.W. 23, in the case of persons not subject to military law, and A.W. 96 in the case of persons so subject.

     The words "any person", as used in A.W. 32, include all persons, whether subject to military law or not. They do not include members of the court itself, although such members may be punishable as indicated in 38a.

     Where a contempt punishable under A.W. 32 has been committed, the court may, after giving the party an opportunity to be heard, impose a punishment within the limits prescribed by A.W. 32. A record is made in and as a part of the regular record of the case before the court showing the facts as to the contempt and the proceedings with reference to it. Sentences adjudged for contempt require the approval of the reviewing authority in order to be effective.

     The court, instead of proceeding as stated above, may, for example, cause the removal of the offender and in a proper case initiate a prosecution against him before a civil or military court.

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