| |
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
|
