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Witnesses - 14134_174
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Sample DD Form 453, Subpoena - 14134_176
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. Subpoenas A subpoena is a court order requiring a person to testify in either a civil or criminal case as a witness. As an LN, you may be required to be sure military personnel are served properly with subpoenas and they understand when and if they are entitled to reimbursement. ON BEHALF OF THE FEDERAL GOVERN- MENT.— Where  Department  of  the  Navy  interests  are involved  and  departmental  personnel  are  required  to testify for the Navy, the Bureau of Naval Personnel (BUPERS)  or  Commandant  of  the  Marine  Corps (CMC) will direct the command to which the witness is attached to issue TAD orders. Costs of such orders are borne by the command. In the event Department of the Navy  interests  are  not  involved,  the  Navy  will  be reimbursed by the concerned federal agency. ON   BEHALF   OF   THE   ACCUSED   IN FEDERAL  COURT.—  When  naval  personnel  are served  with  a  subpoena  and  appropriate  fees  and mileage   are   tendered,   COs   should   issue   no-cost permissive  orders  unless  the  public  interest  would  be seriously prejudiced by the member’s absence from the command.  In  those  cases  where  fees  and  mileage  are not  tendered  as  required  by  the  Federal  Rules  of Criminal Procedure, but the person subpoenaed still desires  to permissive individual attend,  the  CO  is  authorized  to  issue orders at no cost to the government. The should be advised that an agreement to 6-23

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