Page 256 - Trump Executive Orders 2017-2021

Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents 9959

(i) in the case of an expert witness, whether the testimony of the expert is relevant and
necessary, and, if so, whether the Government has provided or will provide an adequate
substitute; or
(ii) in the case of an expert consultant, whether the assistance of the expert is
necessary for an adequate defense.
(B) If the military judge grants a motion for employment of an expert or finds that the
Government is required to provide a substitute, the proceedings shall be abated if the
Government fails to comply with the ruling. In the absence of advance authorization, an expeti
witness may not be paid fees other than those to which they are entitled under subparagraph
(g)(3)(E).
(e) Right to evidence.
(1) In general. Each party is entitled to the production of evidence which is relevant and
necessary.
(2) Unavailable evidence. Notwithstanding paragraph (e)(l), a party is not entitled to the
production of evidence which is destroyed, lost, or otherwise not subject to compulsory
process. However, if such evidence is of such central importance to an issue that it is essential
to a fair trial, and ifthere is no adequate substitute for such evidence, the military judge shall
grant a continuance or other relief in order to attempt to produce the evidence or shall abate
the proceedings, unless the unavailability of the evidence is the fault of or could have been
prevented by the requesting party.
(f) Determining what evidence will be produced The procedures in subsection (c) shall apply
to a determination of what evidence will be produced, except that any defense request for the
production of evidence shall list the items of evidence to be produced and shall include a
description of each item sufficient to show its relevance and necessity, a statement where it
can be obtained, and, if known, the name, address, and telephone number of the custodian of
the evidence.
(g) Procedures for production of witnesses and evidence.
( 1) A-1ilitary witnesses. 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.
(2) Evidence under the control ~fthe Government. Evidence under the control of the
Government may be obtained by notifying the custodian of the evidence of the time, place, and
date the evidence is required and requesting the custodian to send or deliver the evidence.
(3) Civilian witnesses and evidence not under the control of the Government-subpoenas.
(A) In general. The presence of witnesses not on active duty and evidence not under
control of the Government may be obtained by subpoena.
(B) Contents. 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.
(C) Investigative subpoenas.
(i) In general. In the case of a subpoena issued before referral for the production of
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evidence for use in an investigation, the subpoena shall command each person to whom it is