§ 849. Art. 49. Depositions

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(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 (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 (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 (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 provided 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.)

In subsection (a), the word “commissioned” is inserted for clarity.

In subsection (d), the word “Commonwealth” is inserted to reflect the present status of Puerto Rico. The words “of Columbia” are inserted after the word “District” for clarity. The words “the distance of” are omitted as surplusage.

In subsections

(e)and (f), the words “the requirements 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.

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