Court-Martial Witness Subpoenas

Servicemembers facing a Court-Martial often wonder “what happens if a witness refuses to come to my trial?” Generally speaking, witnesses don’t have that option. Courts-Martial are considered federal trials and the prosecutor will issue subpoenas. It is rare for a witness to ignore a subpoena; however, if they do, the prosecution has ways to force appearance.

If the witness is a civilian, the prosecutor can get the police and/or federal marshals involved. The witness almost always backs down once this happens and agrees to appear. If the witness is a military member, the prosecutor will simply serve the subpoena on the Servicemember’s Commander. The Commander then just orders the Servicemember to appear and that is considered a lawful order.

Therefore, for the most part, the only way a witness won’t appear at a Court-Martial after being issued a subpoena is if they can’t be located. If a witness can’t be found, after efforts by the prosecution and defense, then they will usually be declared unavailable and the Court-Martial will proceed.

The prosecution’s ability to force witnesses to appear at a Court-Martial can help and hurt a Servicemember accused. If there is a witness who is favorable to the accused Servicemember but doesn’t want to get involved, he/she will be forced to testify. However, if there is a witness who is NOT favorable to the accused Servicemember but doesn’t want to get involved, he/she will also be forced to testify.

The analysis for forcing a complaining witness (“victim”) to appear at trial is a little more complicated and is explained at this link.

Using the prosecution’s subpoena power to the defense’s advantage is a skill and requires hard work and perseverance. Servicemembers facing a Court-Martial benefit from being represented by an attorney who understands this.

This article was written by Attorney Matthew Barry

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