§846 — Title 10 Armed Forces | U.S. Code

Summary

Trial counsel, defense counsel, and the court-martial must have the same chance to get witnesses and other evidence, under rules the President makes. A subpoena or similar order will look like those used by U.S. criminal courts, must be carried out under the President’s rules, and can reach anywhere in the United States and its territories. A subpoena can force a witness to appear for a court-martial, military commission, court of inquiry, or a deposition under section 849 (article 49), or as allowed elsewhere in this chapter. It can also require production of evidence for those proceedings or for an investigation. An investigative subpoena before charges are referred may be issued only if a general court-martial convening authority lets Government counsel issue it or a military judge does so under section 830a (article 30a). A military judge detailed under section 826 or 830a may order wire or electronic records like a U.S. district court under chapter 121 of title 18, subject to Presidential rules. If someone says a subpoena is unreasonable, oppressive, or illegal, a military judge must review the request and either change or cancel the order or require compliance.

Title 10, §846

Armed Forces — Source: USLM XML via OLRC

(a)In a case referred for trial by court-martial, the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.

(b)Any subpoena or other process issued under this section (article)—

(1)shall be similar to that which courts of the United States having criminal jurisdiction may issue;

(2)shall be executed in accordance with regulations prescribed by the President; and

(3)shall run to any part of the United States and to the Commonwealths and possessions of the United States.

(c)A subpoena or other process may be issued to compel a witness to appear and testify—

(1)before a court-martial, military commission, or court of inquiry;

(2)at a deposition under section 849 of this title (article 49); or

(3)as otherwise authorized under this chapter.

(d)(1)A subpoena or other process may be issued to compel the production of evidence—

(A)for a court-martial, military commission, or court of inquiry;

(B)for a deposition under section 849 of this title (article 49);

(C)for an investigation of an offense under this chapter; or

(D)as otherwise authorized under this chapter.

(2)An investigative subpoena under paragraph (1)(C) may be issued before referral of charges to a court-martial only if a general court-martial convening authority has authorized counsel for the Government to issue such a subpoena or a military judge issues such a subpoena pursuant to section 830a of this title (article 30a).

(3)With respect to an investigation of an offense under this chapter, a military judge detailed in accordance with section 826 or 830a of this title (article 26 or 30a) may issue warrants or court orders for the contents of, and records concerning, wire or electronic communications in the same manner as such warrants and orders may be issued by a district court of the United States under chapter 121 of title 18, subject to such limitations as the President may prescribe by regulation.

(e)If a person requests relief from a subpoena or other process under this section (article) on grounds that compliance is unreasonable or oppressive or is prohibited by law, a military judge detailed in accordance with section 826 or 830a of this title (article 26 or 30a) shall review the request and shall—

(1)order that the subpoena or other process be modified or withdrawn, as appropriate; or

(2)order the person to comply with the subpoena or other process.

Notes & Related Subsidiaries

Historical and Revision Notes

Revised sectionSource (U.S. Code)Source (Statutes at Large) 84650:621.May 5, 1950, ch. 169, § 1 (Art. 46), 64 Stat. 122. The word “Commonwealths” is inserted to reflect the present status of Puerto Rico.

Editorial Notes

Amendments

2016—Pub. L. 114–328, § 5228(a)(5), amended section catchline generally, substituting “Opportunity to obtain witnesses and other evidence in trials by court-martial” for “Opportunity to obtain witnesses and other evidence”. Subsec. (a). Pub. L. 114–328, § 5228(a)(1), substituted “In a case referred for trial by court-martial, the trial counsel, the defense counsel,” for “The counsel for the Government, the counsel for the accused,”. Subsec. (b). Pub. L. 114–328, § 5228(a)(2), amended subsec. (b) generally. Prior to amendment, subsec. (b) related to request by counsel for accused to interview the victim of an alleged sex-related offense. Subsec. (c). Pub. L. 114–328, § 5228(a)(3), amended subsec. (c) generally. Prior to amendment, text read as follows: “Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue and shall run to any part of the United States, or the Commonwealths and possessions.” Subsecs. (d), (e). Pub. L. 114–328, § 5228(a)(4), added subsecs. (d) and (e). 2014—Subsec. (a). Pub. L. 113–291, § 531(b)(2), (3)(B), substituted “counsel for the Government” for “trial counsel” and “counsel for the accused” for “defense counsel”. Subsec. (b). Pub. L. 113–291, § 531(b)(3)(A), which directed substitution of “Counsel for Accused” for “Defense Counsel” in heading of section, was executed by making the substitution in the heading of subsec. (b) to reflect the probable intent of Congress. Pub. L. 113–291, § 531(b)(2), (3)(B), substituted “counsel for the Government” for “trial counsel” and “counsel for the accused” for “defense counsel” wherever appearing. Subsec. (b)(1). Pub. L. 113–291, § 531(b)(1), substituted “through the Special Victims’ Counsel or other counsel for the victim, if applicable” for “through trial counsel”. 2013—Pub. L. 113–66 designated first sentence as subsec. (a) and second sentence as subsec. (c), inserted headings, and added subsec. (b). 2006—Pub. L. 109–163 substituted “Commonwealths and possessions” for “Territories, Commonwealths, and possessions”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2016 AmendmentAmendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing

Regulations

and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

§846 Art. 46. Opportunity to Obtain Witnesses and Other Evidence in Trials by Court-martial