Page:United States Statutes at Large Volume 70A.djvu/112

54 54 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 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 otKbi* reasonable cause, is unable or refuses to appear and tastify 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 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. § 850. Art. 50. Admissibility of records of courts of inquiry (a) I n any case not capital and not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial or military commission if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence. (b) Such testimony may be read in evidence only by the defense in capital cases or cases extending to the dismissal of a commissioned officer. (c) Such testimony may also be read in evidence before a court of inquiry or a military board. § 851. Art. 51. Voting and rulings (a) Votinsf by members of a sreneral or special court-martial upon questions of challensre, on the findings, and on the sentence shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.

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