We are often asked what a person’s obligation as a witness in a trial. Most often these questions are posed by people who are not in the military or not currently serving in a military status at the time their appearance is being sought. Typically, we get asked this when the desired witness is a civilian, and particularly when they are not keen on testifying.
As with any area of the law, the rules are specific, and ensuring those rules are adhered to is critical.
Often the government does not do what they are required in the substance of the subpoena, in the way that subpoena gets transmitted to the witness, or in proving that there was proper service of the necessary components of the subpoena.
Where Can a Person Find the Rules About Subpoenas?
The rules that govern subpoenas is located in several of the subparts of Rule for Court-Martial 703.
The general rule under subsection (a) states that “The prosecution, defense, and court-martial shall have equal opportunity to obtain witnesses and evidence, subject to the limitations set forth in R.C.M. 701, including the benefit of compulsory process.”
Compulsory process for civilian witnesses means a properly served subpoena, and if a subpoena properly served and contains all requirements, then that could also mean a warrant of attachment.
The rules vary substantially for a civilian witness versus a military witness.
Securing Attendance of a Military Witness
Subsection (g)(1) of Rule for Court-Martial 703 explains that “The attendance of a military
witness may be obtained by notifying the commander of the witness of the time, place, and date the presence of the witness is required and requesting the commander to issue any necessary orders to the witness.”
However, civilian witnesses understandably require more.
Securing Attendance of a Non-Active Duty Witness
Subsection (g)(3)(A) explains that “The presence of witnesses not on active duty…may be obtained by subpoena.”
The discussion to this part of the rule expounds on when persons are subject to subpoena:
A subpoena is not necessary if the witness appears voluntarily at no expense to the United States.
Who is Subject to Being Subpoenaed?
Civilian employees of the Department of Defense may be directed by appropriate authorities to appear as witnesses in courts-martial as an incident of their employment. Appropriate travel orders may be issued for this purpose.
A subpoena may not be used to compel a civilian to travel outside the United States and its territories.
A witness must be subject to United States jurisdiction to be subject to a subpoena. Foreign nationals in a foreign country are not subject to subpoena. Their presence may be obtained through cooperation of the host nation.
Foreign nationals and trying to compel attendance at trials located outside the continental United States has been litigated over the years. In some instances, if the government cannot compel attendance of a witness, an alternative can be depositions or even moving the location for the trial.
Contents of a Subpoena
Another important part of the rule is what is required to be set forth in the subpoena for it to be valid and enforceable. Rule for Court-Martial 703(g)(3)(B) establishes that “A subpoena shall state the command by which the proceeding or investigation is directed, and the title, if any, of the proceeding. A subpoena shall command each person to whom it is directed to attend and give testimony at the time and place specified therein, or to produce evidence—including books, papers, documents, data, writings, or other objects or electronically stored information designated therein at the proceeding or at an earlier time for inspection by the parties. A subpoena shall not command any person to attend or give testimony at an Article 32 preliminary hearing.”
Format for a Subpoena
The discussion specifies that “A subpoena normally is prepared, signed, and issued in duplicate on official forms. See DD Form 453 for a template subpoena with certificate of service.”
Certificate of Service is a critical component to ensure that a subpoena is enforceable.
Who May Issue a Subpoena
Subpoena may be issued by:
(i) the military judge, after referral;
(ii) the summary court-martial;
(iii) the trial counsel of a general or special court-martial;
(iv) the president of a court of inquiry;
(v) an officer detailed to take a deposition; or
(vi) in the case of a pre-referral investigative subpoena, a military judge or, when issuance of the subpoena is authorized by a general court-martial convening authority, the detailed trial counsel or counsel for the Government.
According to the discussion of this subsection, “If practicable, a subpoena should be issued in time to permit service at least 24 hours before the time the witness will have to travel to comply with the subpoena.”
Types of Service of a Subpoena
Informal Service
Unless formal service is advisable, the person who issued the subpoena may mail it to the witness in duplicate, enclosing 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 envelope provided. The return envelope should be addressed to the person who issued the subpoena.
The person who issued the subpoena should include with it a statement to the effect that the rights of the witness to fees and mileage will not be impaired by voluntary compliance with the request and that a voucher for fees and mileage will be delivered to the witness promptly on being discharged from attendance.
Formal Service
Formal service is advisable whenever it is anticipated that the witness will not comply voluntarily with the subpoena. Appropriate fees and mileage must be paid or tendered. See Article 47.
If formal service is advisable, the person who issued the subpoena must assure timely and economical service. That person may do so by serving the subpoena personally when the witness is in the vicinity.
When the witness is not in the vicinity, the subpoena may be sent in duplicate to the commander of a military installation near the witness. Such commanders should give prompt and effective assistance, issuing travel orders for their personnel to serve the subpoena when necessary.
Service should ordinarily be made by a person subject to the UCMJ. The duplicate copy of the subpoena must have entered upon it proof of service as indicated on the form and must be promptly returned to the person who issued the subpoena. If service cannot be made, the person who issued the subpoena must be informed promptly. A stamped, addressed envelope should be provided for these purposes.
Hardship means any situation which would substantially preclude reasonable efforts to appear that could be solved by providing transportation or fees and mileage to which the witness is entitled for appearing at the hearing in question.
Service
Who Can Serve a Subpoena?
A subpoena may be served by the person authorized by this rule to issue it, a United States Marshal, or any other person who is not less than 18 years of age.
How Are Subpoenas Served?
Service shall be made by delivering a copy of the subpoena to the person named and, in the case of a subpoena of an individual to provide testimony, by providing to the person named travel orders and a means for reimbursement for fees and mileage as may be prescribed by the Secretary concerned, or in the case of hardship resulting in the subpoenaed witness’s inability to comply with the subpoena absent initial Government payment, by providing to the person named travel orders, fees, and mileage sufficient to comply with the subpoena in rules prescribed by the Secretary concerned.
Where Can a Subpoena be Served?
A subpoena may be served at any place within the United States, its Territories, Commonwealths, or possessions.
Is a Subpoena Submitted Via Email Enough?
This is not an easy answer. If the witness is willing to testify, the issue won’t really get raised.
However, if the witness is unwilling or resistant, there can be issues in proving service.
In military case law, when there was no proof of even attempting to serve a subpoena personally (in person), witnesses who did not show up to a court-martial are not properly classified as “unavailable”. This matters because an unavailable witness’ statements can sometimes come into evidence but the government has to demonstrate actual unavailability. That will not occur if the witness could not be compelled to attend through judicial process because the subpoena either wasn’t served or didn’t contain required components. This is also the case when the fees and mileage information is not supplied as is required by Article 46, UCMJ.
What Happens if Someone Ignores a Properly Served Subpoena Where There is Proof of Service?
If the government can demonstrate to the military judge that the person was properly served and yet still did not show up to trial, the military judge can issue what is known as a warrant of attachment.
Warrant of Attachment
A warrant of attachment is a legal order addressed to an official directing that official to have the person named in the order brought before a court. A warrant of attachment (DD Form 454) may be used when necessary to compel a witness to appear or produce evidence under this rule.
Subpoenas issued under R.C.M. 703 are federal process and a person not subject to the UCMJ may be prosecuted in a federal civilian court under Article 47 for failure to comply with a subpoena issued in compliance with this rule and formally served.
Failing to comply with such a subpoena is a felony offense, and may result in a fine or imprisonment, or both, at the discretion of the district court. The different purposes of the warrant of attachment and criminal complaint under Article 47 should be borne in mind.
The warrant of attachment, available without the intervention of civilian judicial proceedings, has as its purpose the obtaining of the witness’ presence, testimony, or documents.
The criminal complaint, prosecuted through the federal civilian courts, has as its purpose punishment for failing to comply with process issued by military authority. It serves to vindicate the military interest in obtaining compliance with its lawful process.
Neglect or Refusal
If the person subpoenaed neglects or refuses to appear or produce evidence, the military judge or, if before referral, a military judge detailed under Article 30a or a general court-martial convening authority, may issue a warrant of attachment to compel the attendance of a witness or the production of evidence, as appropriate.
Requirements for a Warrant of Attachment
A warrant of attachment may be issued only upon probable cause to believe that the witness or evidence custodian was duly served with a subpoena, that the subpoena was issued in accordance with these rules, that a means of reimbursement of fees and mileage, if applicable, was provided to the witness or advanced to the witness in cases of hardship, that the witness or evidence is material, that the witness or evidence custodian refused or willfully neglected to appear or produce the subpoenaed evidence at the time and place specified on the subpoena, and that no valid excuse is reasonably apparent for the witness’ failure to appear or produce the subpoenaed evidence.
Form of a Warrant of Attachment
A warrant of attachment shall be written. All documents in support of the warrant of attachment shall be attached to the warrant, together with the charge sheet and convening orders.
Who Executes a Warrant of Attachment
A warrant of attachment may be executed by a United States Marshal or such other person who is not less than 18 years of age as the authority issuing the warrant may direct.
Only such non-deadly force as may be necessary to bring the witness before the court-martial or other proceeding or to compel production of the subpoenaed evidence may be used to execute the warrant. A witness attached under this rule shall be brought before the court-martial or proceeding without delay and shall testify or provide the subpoenaed evidence as soon as practicable and be released.
Can a Person Get Relief from a Subpoena or Get a Subpoena Quashed?
If a person subpoenaed requests relief on grounds that compliance is unreasonable, oppressive, or prohibited by law, the military judge or, if before referral, a military judge detailed under Article 30a, shall review the request and shall—
(i) order that the subpoena be modified or quashed, as appropriate; or
(ii) order the person to comply with the subpoena.
Can a Victim Be Compelled to Testify in a Court-Martial?
Yes, a victim can be compelled to testify in a court-martial. This is not the case in many states. I clerked for the San Francisco district attorney’s office in 2010, and I learned there that California will not permit issuance of a subpoena to a crime victim. Period.
The military does not give the same respect to crime victims.
If a party to a court-martial is requesting confidential or private information about a crime victim, then the UCMJ provides a mechanism for the crime victim to try to quash the subpoena for the evidence about the victim. But there is not parallel right to quash a subpoena for the crime victim’s own personal appearance to testify.
See RCM 703(g)(3)(C)(ii) regarding the ability of a victim named in a specification to move for relief or otherwise object under R.C.M. 703(g)(3)(I) for confidential or private evidence about the victim.
Who is a Victim for Purposes of Subpoenaing Evidence?
The term “victim” has the same meaning as the term “victim of an offense under this chapter” in Article 6b. A subpoena requiring the production of personal or confidential information of a named victim may be served on individuals, such as medical professionals, counselors, employers, or journalists, or upon an organization, such as a medical facility, school, treatment center, financial institution, news organization, or insurance company.
Subpoenas to which R.C.M. 703(g)(3)(C) applies may also be subject to additional statutory requirements, e.g., the Right to Financial Privacy Act, 12 USC §§ 3401-3422, which applies to financial records.
How Would a Victim Know if a Subpoena for Their Private Information is Sought?
Notice may be given to the victim or to a victim’s representative such as a representative under R.C.M. 801(a)(6) or legal counsel.
This provision is drawn from Fed. R. Crim. P. 17(c)(3) with differences to account for military justice circumstances.
Military Rule of Evidence 804(b)(6)
A concern for practitioners in this area is the risk of being made to look like the military accused caused the unavailability of witnesses against them. This can happen when the witness is a spouse or child of the accused military member. We call this rule “forfeiture by wrongdoing.”
Essentially, M.R.E. 804(b)(6) states that if the military member is the reason that the witness is unavailable to testify during the court-martial, the judge can rule that the military member loses their right to object to the out-of-court statements of the unavailable witness.
In United States v. Marchesano, 67 M.J. 535 (A.C.C.A., 2008) the trial judge ruled that statements made by the accused’s daughter could come into evidence because the accused did not personally bring the daughter to court. The accused’s wife obtained private counsel and through counsel explained that she was the one making decisions about the child. The mother and child had flown out of Germany, presumably to avoid service of a subpoena. The Army Court of Criminal Appeals held that under the facts of Marchesano, the exception was not met, and the actions of the accused’s wife could not be imputed to the accused. Accordingly, the statements should not have been admitted under this rule (although they were also deemed admissible under different rules).
Nevertheless, forfeiture by wrongdoing must be in the consideration of the defense attorney when navigating issues involving spouses and / or children as witnesses.
Specific Questions about Subpoena Enforcement
When in doubt, ask a lawyer who knows UCMJ law.
If a witness or a crime victim is either active duty or is a military dependent, they are entitled to seek confidential private and independent legal advice from the base legal assistance office attorney, and in some cases, a crime victim is entitled to their own special attorney assigned to represent their interest as a crime victim.
Victims of adultery (i.e., the non-cheating spouse) and victims of sexual harassment do not usually qualify for their own victim’s counsel in most of the branches of service. In those cases, they can speak to base legal assistance or even hire their own private civilian counsel.
Ethical Concerns for Lawyers
Please note that in cases involving adultery, the cheating spouse’s lawyer SHOULD NEVER counsel the victim of adultery about their rights and obligations. To do so would represent a clear conflict of interest and could risk that lawyer’s professional license.
Though rarely used, there are also provisions in each branch of service to ban certain civilian counsel from practicing before military courts-martial.
Practitioners should be leery about the pitfalls of a witness later stating that the defense attorney told them they could ignore a subpoena. Even if never stated, there is always confusion of the issues or even a witness who wants to lay blame elsewhere. Consider consulting a supervising attorney and even the state bar where licensed.
Summary
Compulsory process for a civilian witness has many permutations. It can be confusing, and even prosecutors don’t often understand all of the ins and outs. This issue has serious implications for courts-martial, confrontation rights of the military accused, and even for the witness who wants to test or refuse subpoena.