10 U.S.C. § 849 — Art. 49. Depositions

Page 765 TITLE 10—ARMED FORCES § 849 ‘‘(2) disturbs the proceedings of the court-martial, court, or military commission by any riot or dis- order; or ‘‘(3) willfully disobeys the lawful writ, process, order, rule, decree, or command of the court-martial, court, or military commission.’’ Subsecs. (c), (d). Pub. L. 114–328, § 5230(b), added sub- sec. (c) and redesignated former subsec. (c) as (d). 2011—Pub. L. 111–383 amended section generally. Prior to amendment, text read as follows: ‘‘A court-martial, provost court, or military commission may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its pro- ceedings by any riot or disorder. The punishment may not exceed confinement for 30 days or a fine of $100, or both. This section does not apply to a military commis- sion established under chapter 47A of this title.’’ 2006—Pub. L. 109–366 inserted last sentence. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115–91 effective immediately after the amendments made by div. E (§§ 5001–5542) of Pub. L. 114–328 take effect as provided for in section 5542 of that Act (10 U.S.C. 801 note), see section 1081(c)(4) of Pub. L. 115–91, set out as a note under sec- tion 801 of this title. 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 2011 AMENDMENT Pub. L. 111–383, div. A, title V, § 542(b), Jan. 7, 2011, 124 Stat. 4218, provided that: ‘‘Section 848 of title 10, United States Code (article 48 of the Uniform Code of Military Justice), as amended by subsection (a), shall apply with respect to acts of contempt committed after the date of the enactment of this Act [Jan. 7, 2011].’’ § 849. Art. 49. Depositions (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 para- graph (1) only if the requesting party dem- onstrates that, due to exceptional cir- cumstances, it is in the interest of justice that the testimony of a prospective witness be pre- served for use at a court-martial, military com- mission, 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 rea- sonable written notice of the time and place for the deposition. (4) A deposition under this section shall be taken before, and authenticated by, an impar- tial officer, as follows: (A) Whenever practicable, by an impartial judge advocate certified under section 827(b) of this title (article 27(b)). (B) In exceptional circumstances, by an im- partial 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.—Representa- tion 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 (article 27). In ad- dition, 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 (article 38(b)). (c) ADMISSIBILITY AND USE AS EVIDENCE.—A deposition order under subsection (a) does not control the admissibility of the deposition in a court-martial or other proceeding under this chapter. Except as provided by subsection (d), a party may use all or part of a deposition as pro- vided by the rules of evidence. (d) CAPITAL CASES.—Testimony by deposition may be presented in capital cases only by the defense. (Aug. 10, 1956, ch. 1041, 70A Stat. 53; Pub. L. 90–632, § 2(20), Oct. 24, 1968, 82 Stat. 1340; Pub. L. 98–209, § 6(b), Dec. 6, 1983, 97 Stat. 1400; Pub. L. 109–163, div. A, title X, § 1057(a)(3), Jan. 6, 2006, 119 Stat. 3440; Pub. L. 113–291, div. A, title V, § 532, Dec. 19, 2014, 128 Stat. 3366; Pub. L. 114–328, div. E, title LVII, § 5231, Dec. 23, 2016, 130 Stat. 2914.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 849(a) ...... 849(b) ...... 50:624(a). 50:624(b). May 5, 1950, ch. 169, § 1 (Art. 49), 64 Stat. 123. 849(c) ...... 50:624(c). 849(d) ...... 50:624(d). 849(e) ...... 50:624(e). 849(f) ....... 50:624(f). In subsection (a), the word ‘‘commissioned’’ is in- serted for clarity. In subsection (d), the word ‘‘Commonwealth’’ is in- serted to reflect the present status of Puerto Rico. The words ‘‘of Columbia’’ are inserted after the word ‘‘Dis- trict’’ for clarity. The words ‘‘the distance of’’ are omitted as surplusage. In subsections (e) and (f), the words ‘‘the require- ments of’’ and the words ‘‘of this article’’ are omitted as surplusage. The word ‘‘presented’’ is substituted for the word ‘‘adduced’’ in subsection (e). In subsection (f), the word ‘‘directs’’ is substituted for the words ‘‘shall have directed’’. The words ‘‘by law’’ are omitted as surplusage. Editorial Notes AMENDMENTS 2016—Pub. L. 114–328 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (f) relating to ordering depositions, notice, military and civil officers authorized to take depositions, use of depositions as evidence, testimony by deposition by the defense in capital cases, and use of deposition as evi- dence in cases in which the death penalty is authorized, respectively. 2014—Subsec. (a). Pub. L. 113–291 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as fol- lows: ‘‘At any time after charges have been signed as provided in section 830 of this title (article 30), any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, an authority competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such an authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.’’ Page 766 TITLE 10—ARMED FORCES § 850 2006—Subsec. (d)(1). Pub. L. 109–163 struck out ‘‘Terri- tory,’’ after ‘‘State,’’. 1983—Subsecs. (d), (f). Pub. L. 98–209 inserted ‘‘or, in the case of audiotape, videotape, or similar material, may be played in evidence’’ after ‘‘read in evidence’’. 1968—Subsec. (a). Pub. L. 90–632 inserted reference to the taking of depositions being forbidden by the mili- tary judge or the court-martial without a military judge if the case is being heard. 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 1983 AMENDMENT Amendment by Pub. L. 98–209 effective on first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sen- tence were adjudged by a court-martial before that date, and the proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note 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. § 850. Art. 50. Admissibility of sworn testimony from records of courts of inquiry (a) USE AS EVIDENCE BY ANY PARTY.—In any case not capital and not extending to the dis- missal of a commissioned officer, the sworn tes- timony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be ob- tained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial or military com- mission if the accused was a party before the court of inquiry and if the same issue was in- volved or if the accused consents to the intro- duction of such evidence. This section does not apply to a military commission established under chapter 47A of this title. (b) USE AS EVIDENCE BY DEFENSE.—Such testi- mony may be read in evidence only by the de- fense in capital cases or cases extending to the dismissal of a commissioned officer. (c) USE IN COURTS OF INQUIRY AND MILITARY BOARDS.—Such testimony may also be read in evidence before a court of inquiry or a military board. (d) AUDIOTAPE OR VIDEOTAPE.—Sworn testi- mony that— (1) is recorded by audiotape, videotape, or similar method; and (2) is contained in the duly authenticated record of proceedings of a court of inquiry; is admissible before a court-martial, military commission, court of inquiry, or military board, to the same extent as sworn testimony may be read in evidence before any such body under sub- section (a), (b), or (c). (Aug. 10, 1956, ch. 1041, 70A Stat. 54; Pub. L. 109–366, § 4(a)(2), Oct. 17, 2006, 120 Stat. 2631; Pub. L. 114–328, div. E, title LVII, § 5232, Dec. 23, 2016, 130 Stat. 2915.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 850(a) ...... 850(b) ...... 50:625(a). 50:625(b). May 5, 1950, ch. 169, § 1 (Art. 50), 64 Stat. 124. 850(c) ...... 50:625(c). In subsections (a) and (b), the word ‘‘commissioned’’ is inserted for clarity. Editorial Notes AMENDMENTS 2016—Pub. L. 114–328, § 5232(b), amended section catch- line generally, substituting ‘‘Admissibility of sworn testimony from records of courts of inquiry’’ for ‘‘Ad- missibility of records of courts of inquiry’’. Subsec. (a). Pub. L. 114–328, § 5232(c)(1), inserted head- ing. Subsec. (b). Pub. L. 114–328, § 5232(c)(2), inserted head- ing. Subsec. (c). Pub. L. 114–328, § 5232(c)(3), inserted head- ing. Subsec. (d). Pub. L. 114–328, § 5232(a), added subsec. (d). 2006—Subsec. (a). Pub. L. 109–366 inserted last sen- tence. 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. § 850a. Art. 50a. Defense of lack of mental respon- sibility (a) It is an affirmative defense in a trial by court-martial that, at the time of the commis- sion of the acts constituting the offense, the ac- cused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense. (b) The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence. (c) Whenever lack of mental responsibility of the accused with respect to an offense is prop- erly at issue, the military judge shall instruct the members of the court as to the defense of lack of mental responsibility under this section and charge them to find the accused— (1) guilty; (2) not guilty; or (3) not guilty only by reason of lack of men- tal responsibility. (d) Subsection (c) does not apply to a court- martial composed of a military judge only. In the case of a court-martial composed of a mili- tary judge only, whenever lack of mental re- sponsibility of the accused with respect to an of- fense is properly at issue, the military judge shall find the accused— (1) guilty;