10 U.S. Code § 846 - Art. 46. Opportunity to obtain witnesses and other evidence

§ 846.
Art. 46. Opportunity to obtain witnesses and other evidence
(a)Opportunity To Obtain Witnesses and Other Evidence.—
The counsel for the Government, the counsel for the accused, 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)Counsel for Accused Interview of Victim of Alleged Sex-Related Offense.—
(1)
Upon notice by counsel for the Government to counsel for the accused of the name of an alleged victim of an alleged sex-related offense who counsel for the Government intends to call to testify at a preliminary hearing under section 832 of this title (article 32) or a court-martial under this chapter, counsel for the accused shall make any request to interview the victim through the Special Victims’ Counsel or other counsel for the victim, if applicable.
(2)
If requested by an alleged victim of an alleged sex-related offense who is subject to a request for interview under paragraph (1), any interview of the victim by counsel for the accused shall take place only in the presence of counsel for the Government, a counsel for the victim, or a Sexual Assault Victim Advocate.
(3) In this subsection, the term “alleged sex-related offense” means any allegation of—
(A)
a violation of section 920, 920a, 920b, 920c, or 925 of this title (article 120, 120a, 120b, 120c, or 125); or
(B)
an attempt to commit an offense specified in a paragraph (1) as punishable under section 880 of this title (article 80).
(c)Process.—
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.
(Aug. 10, 1956, ch. 1041, 70A Stat. 53; Pub. L. 109–163, div. A, title X, § 1057(a)(6), Jan. 6, 2006, 119 Stat. 3441; Pub. L. 113–66, div. A, title XVII, § 1704, Dec. 26, 2013, 127 Stat. 958; Pub. L. 113–291, div. A, title V, § 531(b), Dec. 19, 2014, 128 Stat. 3363; Pub. L. 114–328, div. E, title LVII, § 5228(a), Dec. 23, 2016, 130 Stat. 2911.)
Amendment of Section

Pub. L. 114–328, Dec. 23, 2016, div. E, title LVII, § 5228(a), title LXIII, § 5542, Dec. 23, 2016, 130 Stat. 2911, 2967, made amendments to this section effective on the date designated by the President, not later than the first day of the first calendar month beginning two years after Dec. 23, 2016, with implementing regulations prescribed by the President not later than one year after Dec. 23, 2016, and with provisions relating to applicability to various situations. After such effective date, this section will read as follows:

§ 846. Art. 46. Opportunity to obtain witnesses and other evidence in trials by court-martial

(a) Opportunity To Obtain Witnesses and Other Evidence.—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) Subpoena and Other Process Generally.—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) Subpoena and Other Process for Witnesses.—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) Subpoena and Other Process for Evidence.—

(1) In general.—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) Investigative subpoena.—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) Warrant or order for wire or electronic communications.—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) Request for Relief From Subpoena or Other Process.—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.

See 2016 Amendment notes below.

Historical and Revision Notes

Revised section

Source (U.S. Code)

Source (Statutes at Large)

846

50:621.

May 5, 1950, ch. 169, § 1 (Art. 46), 64 Stat. 122.

The word “Commonwealths” is inserted to reflect the present status of Puerto Rico.

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”.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on the date designated by the President, not later than the first day of the first calendar month beginning two years after Dec. 23, 2016, with implementing regulations prescribed by the President not later than one year after Dec. 23, 2016, and with provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328, set out as a note under section 801 of this title.

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