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Page Title: Witnesses
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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. 6-22

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