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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.
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