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10 U.S.C. § 846 — Art. 46. Opportunity to obtain witnesses and other evidence in trials by court-martial
Federal law — U.S. Code and appendices · legal_authorities
**(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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section849&num=0&edition=prelim) (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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section849&num=0&edition=prelim) (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
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Source file: Laws/federal/codes/united-states-code/title-10/section-846-art-46-opportunity-to-obtain-witnesses-and-other-evidence-in-trials-by-c--03a9c7b4d3.md
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Source location: Title 10, Chapter 47, § 846; chapter-047-uniform-code-of-military-justice.md
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**(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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section849&num=0&edition=prelim) (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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section849&num=0&edition=prelim) (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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section830a&num=0&edition=prelim) (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.
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Federal law — U.S. Code and appendices · legal_authorities
In this chapter (the Uniform Code of Military Justice):
(1) The term “Judge Advocate General” means, severally, the Judge Advocates General of the Army, Navy, and Air Force and, except when the Coast Guard is operating as a service in the Navy, an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security.
(2) The Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy, shall be considered as one armed force.
(3) The term “commanding officer” includes only commissioned officers.
(4) The term “officer in charge” means a member of the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority.
(5) The term “superior commissioned officer” means a commissioned officer superior in rank or command.
(6) The term “cadet” means a cadet of the United States Military Academy, the United States Air Force Academy, or the United States Coast Guard Academy.
(7) The term “midshipman” means a midshipman of the United States Naval Academy and any other midshipman on active duty in the naval service.
(8) The term “military” refers to any or all of the armed forces.
(9) The term “accuser” means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused.
(10) The term “military judge” means a judge advocate designated under [section 826(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section826/c&num=0&edition=prelim) (article 26(c)) who is detailed under section 826(a) or [section 830a of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-
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Federal law — U.S. Code and appendices · legal_authorities
**(a) In General.—**
(1) Subject to paragraph (2), a convening authority or a military judge may order depositions at the request of any party.
(2) A deposition may be ordered under paragraph (1) only if the requesting party demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of a prospective witness be preserved for use at a court-martial, military commission, court of inquiry, or other military court or board.
(3) A party who requests a deposition under this section shall give to every other party reasonable written notice of the time and place for the deposition.
(4) A deposition under this section shall be taken before, and authenticated by, an impartial officer, as follows:
(A) Whenever practicable, by an impartial judge advocate certified under [section 827(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section827/b&num=0&edition=prelim) (article 27(b)).
(B) In exceptional circumstances, by an impartial military or civil officer authorized to administer oaths by (i) the laws of the United States or (ii) the laws of the place where the deposition is taken.
**(b) Representation by Counsel.—** Representation of the parties with respect to a deposition shall be by counsel detailed in the same manner as trial counsel and defense counsel are detailed under [section 827 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section827&num=0&edition=prelim) (article 27). In addition, the accused shall have the right to be represented by civilian or military counsel in the same manner as such counsel are provided for in [section 838(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section838/b&num=0&editi
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Federal law — U.S. Code and appendices · legal_authorities
**(a) In General.—**
(1) The President shall prescribe regulations for matters relating to proceedings conducted before referral of charges and specifications to court-martial for trial, including the following:
(A) Pre-referral investigative subpoenas.
(B) Pre-referral warrants or orders for electronic communications.
(C) Pre-referral matters referred by an appellate court.
(D) Pre-referral matters under subsection (c) or (e) of [section 806b of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section806b&num=0&edition=prelim) (article 6b).
(E) Pre-referral matters relating to the following:
(i) Pre-trial confinement of an accused.
(ii) The mental capacity or mental responsibility of an accused.
(iii) A request for an individual military counsel.
(2) In addition to the matters specified in paragraph (1), the regulations prescribed under that paragraph shall—
(A) set forth the matters that a military judge may rule upon in such proceedings;
(B) include procedures for the review of such rulings;
(C) include appropriate limitations to ensure that proceedings under this section extend only to matters that would be subject to consideration by a military judge in a general or special court-martial; and
(D) provide such limitations on the relief that may be ordered under this section as the President considers appropriate.
(3) If any matter in a proceeding under this section becomes a subject at issue with respect to charges that have been referred to a general or special court-martial, the matter shall be transferred to the military judge detailed to the court-martial.
**(b) Detail of Military Judge.—** The Secretary concerned shall prescribe regulations providing for the manner in which military j
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Federal law — U.S. Code and appendices · legal_authorities
**(a) In General.—**
(1) Any person described in paragraph (2) who—
(A) willfully neglects or refuses to appear; or
(B) willfully refuses to qualify as a witness or to testify or to produce any evidence which that person is required to produce;
is guilty of an offense against the United States.
(2) The persons referred to in paragraph (1) are the following:
(A) Any person not subject to this chapter who—
(i) is issued a subpoena or other process described in subsection (c) of [section 846 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section846&num=0&edition=prelim) (article 46); and
(ii) is provided a means for reimbursement from the Government for fees and mileage at the rates allowed to witnesses attending the courts of the United States or, in the case of extraordinary hardship, is advanced such fees and mileage.
(B) Any person not subject to this chapter who is issued a subpoena or other process described in subsection (d) of [section 846 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section846&num=0&edition=prelim) (article 46).
**(b)** Any person who commits an offense named in subsection (a) shall be tried on indictment or information in a United States district court or in a court of original criminal jurisdiction in any of the Commonwealths or possessions of the United States, and jurisdiction is conferred upon those courts for that purpose. Upon conviction, such a person shall be fined or imprisoned, or both, at the court’s discretion.
**(c)** The United States attorney or the officer prosecuting for the United States in any such court of original criminal jurisdiction shall, upon the certification of the facts to him by the military court, commission, cour
Source: Supplied U.S. Code snapshot — release unconfirmed · 10 U.S.C. § 847
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Federal law — U.S. Code and appendices · legal_authorities
### Statutory Notes
Section 611, act May 5, 1950, ch. 169, § 1, 64 Stat. 120, authorized President to prescribe rules. See [section 836 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section836&num=0&edition=prelim), Armed Forces.
Section 612, act May 5, 1950, ch. 169, § 1, 64 Stat. 120, related to unlawfully influencing action of court. See [section 837 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section837&num=0&edition=prelim).
Section 613, act May 5, 1950, ch. 169, § 1, 64 Stat. 120, provided for duties of trial counsel and defense counsel. See [section 838 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section838&num=0&edition=prelim).
Section 614, act May 5, 1950, ch. 169, § 1, 64 Stat. 121, related to sessions of the courts-martial. See [section 839 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section839&num=0&edition=prelim).
Section 615, act May 5, 1950, ch. 169, § 1, 64 Stat. 121, provided for continuances. See [section 840 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section840&num=0&edition=prelim).
Section 616, act May 5, 1950, ch. 169, § 1, 64 Stat. 121, provided for challenges. See [section 841 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section841&num=0&edition=prelim).
Section 617, act May 5, 1950, ch. 169, § 1, 64 Stat. 121, related to oaths. See [section 842 of Title 10](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section842&num=0&edition=prelim).
Section 618, act May 5, 1950, ch. 169, § 1, 64 Stat. 121, related to statutes of limitation. See [section 843 of Title 10](https://uscode.house.gov/view.xhtml
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Federal law — U.S. Code and appendices · legal_authorities
Page 762
TITLE 10—ARMED FORCES
§ 846
In subsection (b), the word ‘‘may’’ is substituted for
the word ‘‘shall’’.
Editorial Notes
AMENDMENTS
2016—Subsec. (a). Pub. L. 114–328, § 5227(c)(1), inserted
heading.
Subsec. (b). Pub. L. 114–328, § 5227(c)(2), inserted head-
ing.
Pub. L. 114–328, § 5227(a), substituted ‘‘is mandatory’’
for ‘‘may be adjudged’’ and struck out ‘‘or by a court-
martial without a military judge’’ after ‘‘by the mili-
tary judge’’ and ‘‘, if permitted by regulations of the
Secretary concerned,’’ after ‘‘charge or specification
may’’.
Subsec. (c). Pub. L. 114–328, § 5227(b), added subsec. (c).
1968—Subsec. (a). Pub. L. 90–632, § 2(19)(A), substituted
‘‘after arraignment’’ for ‘‘arraigned before a court-mar-
tial’’.
Subsec. (b). Pub. L. 90–632, § 2(19)(B), inserted provi-
sions covering the making and accepting of a guilty
plea to charges or specifications other than charges and
specifications alleging an offense for which the death
penalty may be adjudged.
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE OF 2016 AMENDMENT
Amendment by Pub. L. 114–328 effective on Jan. 1,
2019, as designated by the President, with imple-
menting regulations and provisions relating to applica-
bility 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.
EFFECTIVE DATE OF 1968 AMENDMENT
Amendment by Pub. L. 90–632 effective first day of
tenth month following October 1968, see section 4 of
Pub. L. 90–632, set out as a note under section 801 of
this title.
§ 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 c
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