CORE CRIMINAL LAW SUBJECTS: Witnesses: Production of

2019 (October Term)

United States v. Reyes, 80 M.J. 218 (when an accused considers the employment of an expert at government expense appropriate, he must submit a request to the convening authority to authorize the employment and to fix the compensation for the expert before employing her; an accused may request any particular expert, including a government expert; if he is entitled to an expert, the government must provide the named expert or a suitable substitute).   

(although the government often may suggest to the defense an appropriate expert from government resources, it is not the prosecution’s duty to locate defense experts; it is the defense counsel’s duty to provide the convening authority with the names of the experts the defense wishes the government to employ on its behalf; it is the convening authority’s responsibility to approve and fund necessary experts requested by the defense or to provide suitable substitutes; it is the convening authority’s responsibility to approve and fund necessary experts requested by the defense or to provide suitable substitutes). 

(the prosecution’s good faith attempts to locate expert consultants for the defense does not relieve the defense of its responsibility to locate defense experts; a defense counsel is responsible for doing his or her homework). 

United States v. Hennis, 79 M.J. 370 (Article 46, UCMJ, grants an accused equal opportunity with the trial counsel to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe). 

(in this case, after weighing the factors of relevance and necessity, the military judge did not abuse his discretion in refusing to permit the testimony of three witnesses where there was simply no probative evidence that their testimony would have supported a defense theory that a person other than appellant committed the offenses; rather, there was just appellant’s speculation; the defense failed to proffer any evidence to support its theory). 

2009 (September Term)

United States v. Anderson, 68 M.J. 378 (servicemembers are entitled to government-provided expert assistance if such assistance is necessary to their defense; the government must provide the expert if the accused establishes that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; to establish the first prong, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop; when the defense requests a nonmilitary expert, the defense must provide an estimated cost of employment and illustrate why a military expert would be an inadequate substitute; while the military judge is not required to provide the particular expert requested, if the defense shows that expert assistance is necessary, an adequate substitute must be provided). 



United States v. McAllister, 64 M.J. 248 (just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense; this right is a fundamental element of due process of law).   

United States v. Lee, 64 M.J. 213 (at a court-martial, the parties and the court shall have equal opportunity to obtain witnesses and other evidence). 


(prior to trial, the defense must submit a request for employment of an expert to the convening authority supported, in part, by a statement of reasons why the employment of the expert is necessary; if the request is denied by the convening authority, that request may be renewed at trial before the military judge).


United States v. Edmond, 63 M.J. 343 (after subpoenaing a witness on behalf of the defense, the trial counsel was not authorized to tell the witness that he could choose to either testify or not testify because the witness could not choose to leave without testifying unless the defense agreed to release him and the subpoena was quashed by the military judge). 


(under RCM 703(b)(1), a party is entitled to the production of any witness whose testimony on a matter in issue on the merits would be relevant and necessary; the trial counsel is obligated to arrange for the presence of any witness requested by the defense unless the trial counsel contends that the witness’s production is not required under the rule).


United States v. Warner, 62 M.J. 114 (under Article 46, UCMJ, the defense’s opportunity to obtain witnesses is to be equal to the government’s).  



United States v. Quintanilla, 56 MJ 37 (trial counsel’s responsibilities include the duty to obtain the presence of witnesses for both the prosecution and the defense, including the issuance of military orders for active duty witnesses and subpoena’s for civilians).

(a military judge may issue a warrant of attachment to compel the presence of a civilian witness, but only under very specific circumstances as set forth in RCM 703(e)(2)(G)(ii); military judges do not have the power to treat non-compliance with a subpoena as a contempt of court).

United States v. Barreto, 57 MJ 127 (whether the prosecution has satisfied its duty to produce under RCM 703 is a question of reasonableness; the ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness).

(abatement of proceedings under RCM 703(b)(3) was not required because missing witnesses were not found to be critical and vital to appellant’s defense and necessary for a fair trial where:  (1) it was not clear whether the driver of the lead truck in the left lane even witnessed the accident, and the record indicates that the driver of the lead truck did not stop; (2) appellant hit the third vehicle, and the driver of the second car -- a surgeon who stopped to render aid -- stated that he witnessed the collision from his rearview mirror; and (3) the Government’s proffer of three witnesses with unobstructed views of appellant as he drove along B-50 and the accident, in addition to its other eyewitness and expert evidence, constituted an adequate substitute for the testimony of the unknown witnesses).


United States v. Anderson, 55 MJ 198 (military judge lacks inherent power to compel a victim to undergo nonconsensual examination, but the military judge and a trial counsel can use the persuasive powers of their offices to secure the witness’ consent to such examination).


United States v. Johnson, 53 MJ 459 (where an accused has sufficiently important, legally-cognizable interests in the materials or testimony sought, and thereby has standing, there is no reason why a third-party challenge either to a subpoena duces tecum or a subpoena ad testificandum could not be raised during an Article 32 investigation).

(standing to object to a subpoena duces tecum or a subpoena ad testificandum during an Article 32 investigation exists when the actions of the government impact upon the reliability of the evidence presented against an accused at trial, e.g., coerced confessions, unlawful command influence, interference with the rights of confrontation or cross-examination, and interference with the right to present evidence).

(where testimony of accused’s wife at Article 32 investigation was secured by means of an illegally ordered German subpoena, accused lacked standing to object where: appellant was neither deprived of a right nor hindered in presenting his case; appellant and his counsel attended the Article 32; appellant had full notice of the witnesses against him and did not object to his wife’s testimony at the Article 32; appellant had the opportunity to confront his wife and did cross-examine her at the Article 32; and the testimony of the wife at the Article 32 investigation was reliable).

United States v. McElhaney, 54 MJ 120 (the parties to a court-martial are given equal opportunity to obtain witnesses and are 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).

(military judge’s ruling on a request for a witness is reviewed for abuse of discretion and should be reversed only if, on the whole, denial of the defense witness was improper; judicial denial of a witness request will not be set aside unless there is a definite and firm conviction that the military judge committed a clear error of judgment in the conclusion it reached upon weighing relevant factors).

(factors to be weighed to determine whether personal production of a witness is necessary include:  the issues involved in the case and the importance of the requested witness to those issues; whether the witness is desired on the merits or the sentencing portion of the case; whether the witness’s testimony would be merely cumulative; the availability of alternatives to the personal appearance of the witness; and the timeliness of the request for the witness).

(defense requested witness to testify that rape allegation made by victim when she was ten years old was false and to provide opinion on victim’s character for truthfulness; military judge did not abuse discretion in denying that request where the allegation of rape:  (1) was irrelevant; (2) would have provided an insufficient basis upon which to attack victim’s credibility; (3) had no bearing on validity of victim’s claims against appellant; (4) did not establish a motive on the part of the victim to fabricate claims against appellant; and (5) fell short of developing a relevant history of false sexual complaints by the victim).

(defense requested production of law enforcement agent who interviewed victim to testify about victim’s poor recall of time frames, coaching by the victim’s mother, prior inconsistent statements by the victim, and the fact that the victim was punished for her relationship with appellant; military judge did not abuse his discretion in denying this request where:  (1) the judge was presented with clear evidence that the agent would not testify as the defense had proffered; and (2) the agent had no personal knowledge whether victim was punished for her relationship with appellant).

(defense requested production of witness to testify about victim’s home environment, specifically that at about 6 years old the victim was raised in a bar/brothel and mimicked suggestive or erotic conduct she observed there, thus explaining how she obtained sexual knowledge beyond her years and could fabricate allegations against appellant; military judge did not abuse his discretion in denying this request where:  (1) the testimony could not have imparted anything about what the victim actually observed; (2) the testimony could not have revealed anything about what sexual matters the victim understood at that age; (3) the testimony could not reveal what sexual knowledge the victim obtained at that time; and (4) the court members would have been left to speculate about the nexus between what the victim knew and saw at 6 years old and the knowledge she had between 15 and 17 during the criminal investigation and the court-martial).


United States v. Rockwood, 52 MJ 98 (a military judge’s decision on witness production is reviewed for abuse of discretion).

(military judge did not abuse his discretion in denying request to produce witness whose testimony was remote because that witness was allegedly to testify about matters in existence months after the relevant offenses).

(commander’s state of mind regarding his personal understanding of international law and the balance he sought to strike between force protection and suppressing violence were marginally relevant to whether conditions on the ground justified appellant’s conduct under international law; but mere assertions of the subject areas appellant wished to address with the potential witness did not satisfy requirement that proffers set forth what the witness is expected to say about those subjects).

(by failing to renew and clarify a request for witness, as the military judge specifically invited the defense to do, the defense failed to preserve issue of witness production for appellate review).

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