U.S. Code » Title 10 » Subtitle Subtitle A— General Military Law › Part PART II— PERSONNEL › Chapter CHAPTER 47— UNIFORM CODE OF MILITARY JUSTICE › Subchapter SUBCHAPTER VII— TRIAL PROCEDURE

10 U.S.C. § 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.)

Historical and Revision Notes

Revised section

Source (U.S. Code)

Source (Statutes at Large)

849(a)

849(b)

50:624(a).

50:624(b).

May 5, 1950, ch. 169, § 1 (Art. 49), 64 Stat. 123.

849(c)

50:624(c).

849(d)

50:624(d).

849(e)

50:624(e).

849(f)

50:624(f).

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.

Editorial NotesAmendments

2016—Pub. L. 114–328 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (f) relating to ordering depositions, notice, military and civil officers authorized to take depositions, use of depositions as evidence, testimony by deposition by the defense in capital cases, and use of deposition as evidence in cases in which the death penalty is authorized, respectively.

2014—Subsec. (a). Pub. L. 113–291 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “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.”

2006—Subsec. (d)(1). Pub. L. 109–163 struck out “Territory,” after “State,”.

1983—Subsecs. (d), (f). Pub. L. 98–209 inserted “or, in the case of audiotape, videotape, or similar material, may be played in evidence” after “read in evidence”.

1968—Subsec. (a). Pub. L. 90–632 inserted reference to the taking of depositions being forbidden by the military judge or the court-martial without a military judge if the case is being heard.

Statutory Notes and Related SubsidiariesEffective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1983 Amendment

Amendment by Pub. L. 98–209 effective on first day of eighth calendar month beginning after Dec. 6, 1983, but not to apply to any case in which the findings and sentence were adjudged by a court-martial before that date, and the proceedings in any such case to be held in the same manner and with the same effect as if such amendments had not been enacted, see section 12(a)(1), (4) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

Notes of Decisions
Cited in 51 cases, 1957–2014 · leading case: Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
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Hamdan v. Rumsfeld, 548 U.S. 557 (2006). “And while some flexibility may be necessary to permit trial of battlefield captives like Hamdan, military statutes and rules already provide for introduction of deposition testimony for absent witnesses, 10 U. S. C. § 849 (d); R. C. M. 702, and use of classified information,…”
Marshall Kenneth Flowers v. First Hawaiian Bank, Schofield Branch, 295 F.3d 966 (1st Cir. 2002). “See RCM 702; 10 U.S.C. § 849 . Further, RCM 405, which regulates Article 32 proceedings, makes no mention of a subpoena power.”
United States v. Norfleet, 53 M.J. 262 (C.A.A.F. 2000). · cites it 2× “49, UCMJ, 10 USC § 849 (authorizing the military judge to rule on the propriety of depositions); Art.”
United States v. Cokeley, 22 M.J. 225 (1986). · cites it 2× “II Article 49(a), UCMJ, 10 U.S.C. § 849 (a), provides that at any time after charges have been preferred, any party may request that a deposition be taken.”
United States v. Killebrew, 9 M.J. 154 (1980). · cites it 2× “” Article 49, Uniform Code of Military Justice, 10 U.S.C. § 849 . Also, there are limitations on compelling the attendance of a witness at trial.”
United States v. Bennett, 12 M.J. 463 (1982). · cites it 2× “Obviously, one factor which must enter into the decision,of the person ruling on the request for a witness is the unavailability of the witness, such as that occasioned by nonamenability to the court’s process.”
United States v. Jacoby, 11 C.M.A. 428 (1960). · cites it 2× “Code, supra, Article 49, provides: “(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 an authority competent to convene a court-martial for the trial of those charges…”
United States v. Brady, 8 C.M.A. 456 (1957). · cites it 3× “” Feld, A Manual of Courts-Martial Practice and Appeal, § 36 (1957); see also Everett, Military •Justice in the Armed Forces of the United States, page 223 (1956).”
United States v. Matthews, 16 M.J. 354 (1983). “See Article 49(f), UCMJ, 10 U.S.C. § 849 (f). Since it is the convening authority who decides what type of court-martial the above-mentioned charges will be referred to, these statutory provisions impart some “prosecutorial discretion” in death penalty cases.”
United States v. Stuckey, 10 M.J. 347 (1981). “Article 49(c), UCMJ, 10 U.S.C. § 849 . Furthermore, the taking of an oath accompanies any enlistment into the Armed Services.”
United States v. Curtis, 32 M.J. 252 (1991). “Article 49(f), UCMJ, 10 USC § 849 (f), limits use of depositions in capital cases.”
United States v. Connor, 27 M.J. 378 (1989). · cites it 2× “Also, in Article 49 of the Code, 10 USC § 849 , authorization is given to take oral or written depositions after charges have been preferred; and, subject to conditions prescribed in Article 49(d), a deposition “may be read in evidence before any military court or commission in…”
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