e. Oath for interpreter. The trial counsel or the summary court shall administer the following oath to every interpreter in the trial of any case before a court-martial before he enters upon his duties:

"You swear (or affirm) that in the case now in hearing you will interpret truly the testimony you are called upon to interpret. So help you God." f. Oath for witnesses. The trial counsel or the summary court shall administer the following oath to each witness before he first testifies in a case:

"You swear (or affirm) that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth. So help you God."

g. Oath for questioned member. When a member is challenged or is questioned concerning his competency to serve, the trial counsel shall administer, when appropriate (626), the following oath to the member who is to be examined under oath as to his competency.

"You swear (or affirm) that you will answer truthfully to the questions touching your competency as a member of the court in this case. So help you God."

h. Oath for escort. The escort on views or inspections by the court shall, before entering upon his duties as escort, take the following oath, which shall be administered by the trial counsel:

"You swear (or affirm) that you will escort the court and will well and truly point out to them (the place in which the offense charged in this case is alleged to have been committed) ( ); and that you will not speak to the court concerning (the alleged offense) (

describe (the place aforesaid) (

). So help you God."

), except to

i. Oath to charges. The form of oath to charges, which shall be administered by a commissioned officer of the armed forces authorized to administer oaths, is as follows:

"You swear (or affirm) that you are a person subject to the Uniform Code of Military Justice; that you have personal knowledge of or have investigated the matters set forth in the foregoing charge (s) and specification(s); and that the same are true in fact to the best of your knowledge and belief. So help you God."

j. Oath to witnesses at Article 32 investigation. The oath administered by the investigating officer to witnesses in an investigation under Article 32 is as follows:

"You swear (or affirm) that the (statement given by you is) (evidence you are about to give shall be) the truth, the whole truth, and nothing but the truth. So help you God."

k. Oath to person giving a deposition. Any person whose testimony is taken by deposition, whether on oral examination or by written interrogatories, shall, before he testifies, be examined on oath, administered by the officer, civil or military, taking the deposition, in the following form:

"You swear (or affirm) that the evidence you are about to give shall be the truth, the whole truth, and nothing but the truth. So help you God."

Chapter XXIII

INCIDENTAL MATTERS

ATTENDANCE OF WITNESSES-EMPLOYMENT OF EXPERTS-DEPOSITIONS—

CONTEMPTS-EXPENSES OF COURTS-MARTIAL

115. ATTENDANCE OF WITNESSES. a. General. The trial counsel, defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence. 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 Territories, Commonwealths, and possessions (Art. 46).

The formal written instrument or process that serves to summon a witness to appear and testify is a subpoena. A subpoena cannot be used for the purpose of compelling a witness to appear at an examination before trial, except for the taking of a deposition. See, however, Article 135 as to courts of inquiry.

In this paragraph (115) the term "trial counsel" includes a summary court-martial unless the context indicates otherwise. See 796 concerning the authority of summary courts-martial to compel the attendance of witnesses.

The trial counsel will take timely and appropriate action to provide for the attendance of those witnesses who have personal knowledge of the facts at issue in the case for both the prosecution and the defense. He will not of his own motion take that action with respect to a witness for the prosecution unless satisfied that the testimony of the witness is material and necessary. The trial counsel will take similar action with respect to all witnesses requested by the defense, except that when there is disagreement between the trial counsel and the defense counsel as to whether the testimony of a witness so requested would be necessary, the matter will be referred for decision to the convening authority or to the law officer or special court-martial according to whether the question arises before or after the court convenes. A request for the personal appearance of a witness will be submitted in writing, together with a statement, signed by the counsel requesting the witness, containing (1) a synopsis of the testimony that it is expected the witness will give, (2) full reasons which necessitate the personal appearance of the witness, and (3) any other matter showing that the expected testimony is necessary to the ends of justice. The decision on the request must be made on an individual basis in each case by weighing the materiality of the testimony and its relevance to the guilt or innocence of the accused, together with the relative responsibilities of the parties concerned, against the equities of the situation. If the convening authority determines that the witness will not be required to attend the trial, the request may be renewed at the trial for determination by the law officer or special court-martial, as if the question arose for the first time during the trial.

The trial counsel may consent to admit the facts expected from the testimony of a witness requested by the defense if the prosecution does not contest these facts or if they are unimportant. An application for the attendance of any witness may be withdrawn if the trial counsel and defense counsel enter into a stipulation as to the testimony of that witness. See 48d and 154b (Stipulations).

b. Military witnesses. The attendance of a person in the military service stationed at the place of the meeting of the court, or so near that travel at government expense will not be involved, will ordinarily be obtained by notification, oral or otherwise, by the trial counsel, to the person concerned of the time and place he is to appear as a witness. In order to assure the attendance of the person, the proper commanding officer should be informally advised so that he can arrange for the timely presence of the witness. If for any reason formal notice is required, the trial counsel will, through regular channels, request the proper commanding officer to order the witness to attend.

If a military person, desired as a witness, is not present at the place where the court-martial is convened and his attendance would involve travel at government expense, the appropriate superior will be requested to issue the necessary order.

The attendance of military persons not assigned to active duty should be obtained in the same manner as the attendance of civilian witnesses not in government employ.

If practicable, a request for the attendance of a military witness will be made so that the witness will have notice at least 24 hours before starting to attend the meeting of the court.

c. Use and examination of documentary and other evidence in control of military authorities. If documents or other evidentiary materials are in the custody and control of military authorities, the trial counsel, the convening authority, the law officer, or the special court-martial will, upon reasonable request and without the necessity of further process, take necessary action to effect their production for use in evidence and, within any applicable limitations (see 1516 (1) and (3)), to make them available to the defense to examine or to use, as appropriate under the circumstances. See also 44h.

d. Civilian witnesses. (1) Issue, service, and return of subpoena. The trial counsel is authorized to subpoena as a witness, at government expense, any civilian who is to be a material witness and who is within any part of the United States, or the Territories, Commonwealths, and possessions, and can compel the attendance of such a civilian (Art. 46). As to employment of expert witnesses, see 116.

A subpoena normally is prepared, signed, and issued in duplicate on the official forms provided. See appendix 17 for the form of a completed subpoena with certificate of service. If a subpoena requires the witness to bring with him a document or an exhibit to be used in evidence, each document or exhibit will be described in sufficient detail to enable the witness to identify it readily.

If practicable, a subpoena will be issued in time to permit service to be made or accepted at least 24 hours before the time the witness will have to start from home in order to comply with the subpoena.

Unless he believes that formal service is advisable, the trial counsel will mail the subpoena to the witness in duplicate, inclosing a postage paid envelope

bearing a return address, with the request that the witness sign the acceptance of service on the copy and return it in the postage paid envelope. The return envelope should be addressed to the trial counsel of the court and not to that officer by name. The trial counsel may, and ordinarily should, include with the request a statement to the effect that the rights of the witness to fees and mileage will not be prejudiced by voluntary compliance with the request and that a voucher for fees and for mileage going to and returning from the place of the sitting of the court will be delivered to him promptly on being discharged from attendance on the court.

If formal service is believed to be necessary, the trial counsel will take appropriate action with a view to timely and economical service. For example, if the witness is near the place where the court is convened, the trial counsel, or someone detailed or designated by the commanding officer of the installation, may serve the subpoena; if the witness is near some other military installation, the duplicate subpoenas may be inclosed with a suitable letter to the commanding officer of that installation; or the duplicate subpoenas may be inclosed with a suitable letter to the commander of an army area, naval district, air command, or other comparable command within which the witness resides or may be found. These commanders will take appropriate action to complete prompt service of the subpoena by the most economical available means. Travel orders for the purpose will be issued when necessary. Service ordinarily will be made by persons subject to military law, but may legally be made by others. Service is made by personal delivery of one of the copies to the witness. The other copy, with proof of service made as indicated on the form, will be promptly returned to the trial counsel. If service cannot be made, the trial counsel will be promptly so informed. When use for it is probable, a return postage paid envelope, addressed to the trial counsel of the court and not to that officer by name, may be sent to the person who is to serve the subpoena.

In foreign territory, the attendance of civilian witnesses may be obtained in accordance with existing agreements or, in the absence thereof, within the principles of international law. However, in occupied enemy territory, the appropriate commander is empowered to compel the attendance of a civilian witness in response to a subpoena issued by the trial counsel.

(2) Neglect or refusal to appear. See Article 47 and Warrant of attachment below. In order to maintain a prosecution under Article 47, a person must not only be duly subpoenaed but must be paid or tendered fees, including the fee for one day of actual attendance and mileage both ways, "at the rates allowed to witnesses attending the courts of the United States" (Art. 47).

When it appears advisable, the trial counsel may address a written request or the senior officer present may address a written order, for the provision of fees, to a finance or disbursing officer under the command of the convening authority, or to a finance or disbursing officer of the same armed force as the convening authority and convenient to the place where the witness is found. On receipt of the request or order, the finance or disbursing officer will immediately provide the trial counsel, or any other person designated for the purpose, the required amount of money to be tendered or paid to the witness for one day of attendance and mileage for the journey to and from the court. In this respect, see appropriate regulations of the Secretary of a Department. If an officer charged with serving a subpoena pays from his