Gonzalez & Waddington – Attorneys at Law

Enforcing witness subpoenas under the UCMJ

Witnesses. Article 47, RCM 703(e)(2)(G).

A warrant of attachment is issued only upon probable cause to believe that the witness was duly served with the subpoena, that fees and mileage were tendered, that the witness was material, that the witness refused or willfully neglected to appear, and that no valid excuse exists. RCM 703(e)(2)(G)(ii).

Only non-deadly force may be used to bring the witness to before the court-martial. RCM 703(e)(2)(G)(iv).If the witness neglects or refuses to appear, a military judge (or the convening authority if there is no military judge), may issue a warrant of attachment. RCM 703(e)(2)(G)(i).

Refusal to appear or testify is a separate offense under Article 47.

United States v. Scaff , 29 M.J. 60 (C.M.A. 1989). The military judge ordered a post-trial Article 39(a) to hear allegedly newly discovered evidence to be offered by defense witness. Trial counsel issued a subpoena to the defense witness, but the convening authority refused to pay expenses on the basis of bad advice from his SJA. The Court of Military Appeals determined that since the record of trial wasn’t authenticated, the judge could order the government to show cause why the findings and sentence should not be set aside or the judge could order accused released from confinement pending the motion for new trial.

Evidence. RCM 703(f)(4)(C).

If the person who has the evidence believes that compliance with the subpoena or order of production is unreasonable or oppressive, the person may seek relief from the military judge.

The military judge can withdraw or modify the subpoena or order of production.

United States v. Rodriguez , 57 M.J. 765 (N-M. Ct. Crim. App. 2002). Law enforcement agents invited NBC for a “ride along” where an NBC videographer may have taped the scene of the traffic stop and search of appellant’s vehicle. The accused filed a motion to suppress based on violations of his Fourth Amendment rights and believed that the video may contain evidence in support of his motion. NBC provided a videotape of the broadcast material of the traffic stop but stated that it relied on its First Amendment privilege regarding the production of the video “outtakes” and reporter’s notes.

The military defense lawyers requested the military judge to order production of any remaining videotape. The military judge denied the defense request to compel production. The appellate court stated that, essentially, the accused ask for production; NBC asked for relief; and the trial counsel supported that with a motion to quash the subpoena. The court found that the accused never met his burden for production: relevance and necessity. Even if it was, and assuming the evidence was unavailable under RCM 703(f)(2) because it was not subject to compulsory process, the evidence was not of central importance to an issue that was essential to a fair trial. The military judge should have at least reviewed the material in camera , though.

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In camera review

The military judge may direct an in camera review in order to determine whether relief should be granted.

An in camera review differs from the in camera review found in RCM 701(g). This review comes after a subpoena has been issued, which means someone has decided that the matter is relevant and necessary. Now, the custodian of the evidence does not want to give the matter to the court. The military judge now does an in camera review. If the military judge agrees, the matter now has become “unavailable,” and the parties shift to the unavailable evidence analysis found in RCM 703(f)(2).

Types of potentially oppressive or unreasonable subpoenas.

First Amendment claims.

United States v. Rodriguez , 57 M.J. 765 (N-M. Ct. Crim. App. 2002). United States v. Wuterich , 67 M.J. 63 (C.A.A.F. 2008). The accused gave an interview to CBS. CBS broadcast a portion of the interview and the government issued a subpoena for the remainder. The military judge did not conduct an in camera review and ordered the subpoena quashed. The court remanded for an in camera review and suggested that if the outtakes were not cumulative, then production and a subpoena would be appropriate.

Medical treatment and disciplinary records of minors United States v. Reece, 25 M.J. 93 (C.M.A. 1987). The military judge should have conducted an in camera inspection of the victims’ treatment and disciplinary records. The defense counsel “made as specific a showing of relevance as possible, given that he was denied all access to the documents.” Witness credibility would be central in this case because there were no eyewitnesses. The court held that the military judge abused his discretion in failing to order production of the requested records for an in camera review.

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United States v. Harding, 63 M.J. 65 (C.A.A.F. 2006) Defense counsel requested production of a rape victim’s medical records during discovery. Trial counsel subpoenaed the requested records; however the custodian, a private social worker who had counseled the victim, refused to produce the records. Defense counsel filed a motion asking the military judge to order production of the records, which he agreed to do after a hearing where he considered M.R.E. 513 and decided an in camera review would be appropriate. When the social worker still declined to produce the records, the military judge issued a warrant of attachment IAW R.C.M. 703(e)(2)(G). The warrant of attachment authorized the United States Marshal Service to seize the records and deliver them to the judge. The U.S. Marshal Service failed to seize the records, instead merely asking the social worker to produce the records, and gave up when she declined to do so. Faced with the government’s failure to enforce the warrant of attachment, and deciding that the case could not proceed without in camera consideration of the records, the military judge abated the proceedings with regard to the rape charge. The appellate courts upheld the military judge.

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