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U.S. Code as of:
01/19/04
Section 849. Art. 49. Depositions
(a) 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.
(b) The party at whose instance a deposition is to be taken shall
give to every other party reasonable written notice of the time and
place for taking the deposition.
(c) Depositions may be taken before and authenticated by any
military or civil officer authorized by the laws of the United
States or by the laws of the place where the deposition is taken to
administer oaths.
(d) A duly authenticated deposition taken upon reasonable notice
to the other parties, so far as otherwise admissible under the
rules of evidence, may be read in evidence or, in the case of
audiotape, videotape, or similar material, may be played in
evidence before any military court or commission in any case not
capital, or in any proceeding before a court of inquiry or military
board, if it appears -
(1) that the witness resides or is beyond the State, Territory,
Commonwealth, or District of Columbia in which the court,
commission, or board is ordered to sit, or beyond 100 miles from
the place of trial or hearing;
(2) that the witness by reason of death, age, sickness, bodily
infirmity, imprisonment, military necessity, nonamenability to
process, or other reasonable cause, is unable or refuses to
appear and testify in person at the place of trial or hearing; or
(3) that the present whereabouts of the witness is unknown.
(e) Subject to subsection (d), testimony by deposition may be
presented by the defense in capital cases.
(f) Subject to subsection (d), a deposition may be read in
evidence or, in the case of audiotape, videotape, or similar
material, may be played in evidence in any case in which the death
penalty is authorized but is not mandatory, whenever the convening
authority directs that the case be treated as not capital, and in
such a case a sentence of death may not be adjudged by the
court-martial.
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