123STA T . 2 58 8 PUBLIC LA W 111 – 8 4—O CT. 28 , 2 0 0 9acrim i n a ldef endan t inac ou rtoft h e U nited S tate s under article I II of the C onstitution .‘ ‘ (2)P rocess issued in militar y commissions under this cha p ter to compel w itnesses to appear and testify and to compel the produc - tion of other e v idence — ‘‘( A ) shall b e similar to that which courts of the United States havin g criminal j urisdiction may lawfully issue
and ‘‘( B ) shall run to any place where the United States shall have jurisdiction thereof. ‘‘(b) DISCLO S URE O FEX CUL PAT OR Y E V I D E N CE.—( 1 )Assoonas practicable , trial counsel in a military commission under this chapter shall disclose to the defense the e x istence of any evidence that reasonably tends to— ‘‘(A) negate the guilt of the accused of an offense charged; or ‘‘(B) reduce the degree of guilt of the accused with respect to an offense charged. ‘‘(2) T he trial counsel shall, as soon as practicable, disclose to the defense the existence of evidence that reasonably tends to impeach the credibility of a witness whom the government intends to call at trial. ‘‘( 3 ) The trial counsel shall, as soon as practicable upon a finding of guilt, disclose to the defense the existence of evidence that is not subject to paragraph (1) or paragraph (2) but that reasonably may be viewed as mitigation evidence at sentencing. ‘‘( 4 ) The disclosure obligations under this subsection encompass evidence that is k nown or reasonably should be known to any government officials who participated in the investigation and prosecution of the case against the defendant. ‘ ‘ §94 9 k.Def e ns e o f lac kof m en t al r es p ons ib ilit y ‘‘(a) AFFIR M ATIVE DEFENSE.—It is an affirmative defense in a trial by military commission under this chapter that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and q uality or the wrongfulness of the acts. M ental disease or defect does not otherwise constitute a defense. ‘‘(b) BURDEN OF PROOF.—The accused in a military commission under this chapter has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence. ‘‘(c) F INDIN G S FOLLO W ING ASSERTION OF DEFENSE.— W henever lack of mental responsibility of the accused with respect to an offense is properly at issue in a military commission under this chapter, the military judge shall instruct the members as to the defense of lack of mental responsibility under this section and shall charge the members to find the accused— ‘‘(1) guilty; ‘‘(2) not guilty; or ‘‘(3) subject to subsection (d), not guilty by reason of lack of mental responsibility. ‘‘(d) MA J ORITY V OTE R E Q UIRED FOR FINDING.—The accused shall be found not guilty by reason of lack of mental responsibility under subsection (c)(3) only if a majority of the members present at the time the vote is taken determines that the defense of lack of mental responsibility has been established. Det e rmina ti o n .
