General

General overview of production of expert witnesses:

1.militarydefenselawyers173RCM 703 provides that “[t]he prosecution and defense and the court-martial shall have equal opportunity to obtain witnesses and evidence, including the benefit of compulsory process.” This rule is based on Article 46, UCMJ and implements the accused’s Sixth Amendment right to compulsory process.

  1. Merits witnesses. Each party is entitled to production of any witness whose testimony on a matter in issue on the merits or on an interlocutory question would be relevant and necessary. RCM 703(b)(1). (1) Necessary means the evidence is not cumulative and would contribute to a party’s presentation of the case in some positive way on a matter in issue. RCM 703(b)(1) discussion. A matter is not in issue when it is stipulated as a fact.
  2. Sentencing witnesses. Each party is entitled to the production of any witness whose testimony on sentencing is required under RCM 1001(e). RCM 703(b)(2). (1) There is much greater latitude during the presentencing proceeding to receive information from means other than the testimony of witnesses in the courtroom. RCM 1001(e)(1).
  3. Evidence. Each party is entitled to production of evidence that is relevant and necessary. RCM(f)(1). (1) Necessary means the evidence is not cumulative and would contribute to a party’s presentation of the case in some positive way on a matter in issue. RCM 703(f)(1) discussion. A matter is not in issue when it is stipulated as a fact.
  1. How the process works.
    1. The parties identify the witness or evidence that they want produced.
    2. The defense submits its requests to the trial counsel.
    3. If the trial counsel contends that some defense witnesses or evidence do not satisfy the production standards, the trial counsel tells the defense. The defense may file a motion for production with the military judge.
    4. The military judge rules on production.
    5. The trial counsel then arranges for the presence of those required witnesses and that evidence, to include prosecution witnesses and evidence. The trial counsel arranges for orders or subpoenas of witnesses, depending on the witnesses’ status, and arranges for requests or subpoenas for evidence, depending on who controls the evidence.

Merits witnesses

How the process works