2008 edition - Fort Sam Houston - U.S. Army

(f); paragraph 117 b(11) of MCM, 1969 (Rev.); Fed. R. Crim. P.
15(e). The admissibility of depositions is governed by Mil. R.
Evid. 804 and by Article 49(d), (e), and (f) so it is unnecessary to
prescribe further rules governing their use in R.C.M. 702. As to
Article 49(d)(1), see United States v. Davis, 19 U.S.C.M.A. 217,
41 C.M.R. 217 (1970). See also United States v. Bennett , 12 M.J.
463, 471 (C.M.A. 1982); United States v. Gaines, 20 U.S.C.M.A.
5 5 7 , 4 3 C . M . R . 3 9 7 ( 1 9 7 1 ) ; U n i t e d S t a t e s v . B r y s o n , 3
U.S.C.M.A. 329, 12 C.M.R. 85 (1953). The fourth paragraph in
the discussion is based on paragraphs 75 b(4) and 75 e of MCM,
1969 (Rev.).
(b) Who may order. This subsection is based on Article 49(a) and
on the second and third sentences of paragraph 117 b(1) of MCM,
1969 (Rev.). As noted in subsection (i) the express approval of a
competent authority is not required in order to take a deposition.
See also United States v. Ciarletta, 7 U.S.C.M.A. 606, 23 C.M.R.
70 (1957). Express approval may be necessary in order to secure
the necessary personnel or other resources for a deposition, when
a subpoena will be necessary to compel the presence of a witness,
or when the parties do not agree to the deposition.
(c) Request to take deposition. Subsection (1) is based on the first
sentence in paragraph 117 b(1) of MCM, 1969 (Rev.). The discussion
is based on the fourth sentence of that paragraph. Subsection
(2) is based on the fifth and sixth sentences in paragraph 117
b(1).
Subsection (3)(A) is based on Article 49(a). The discussion
provides guidance on what may be good cause for denial. The
discussion indicates that ordinarily the purpose of a deposition is
to preserve the testimony of a necessary witness when that witness
is likely to be unavailable for trial. See Analysis, subsection
(a) of this rule. The Court of Military Appeals has held that a
deposition may be required in other circumstances described in
the last sentence of the discussion. See United States v. Killebrew,
9 M.J. 154 (C.M.A. 1980); United States v. Cumberledge, 6 M.J.
203, 205, n. 3 (C.M.A. 1979) (deposition may be appropriate
means to compel interview with witness when Government improperly
impedes defense access to a witness); United States v.
Chuculate, 5 M.J. 143, 145 (C.M.A. 1978) (deposition may be an
appropriate means to allow sworn cross-examination of an essent
i a l w i t n e s s w h o w a s u n a v a i l a b l e a t t h e A r t i c l e 3 2 h e a r i n g ) ;
United States v. Chestnut, 2 M.J. 84 (C.M.A. 1976) (deposition
may be an appropriate means to cure error where witness was
improperly found unavailable at Article 32 hearing). Chuculate
and Chestnut have construed Article 49 as means of satisfying the
discovery purposes of Article 32 when the Article 32 proceeding
fails to do so. Killebrew and Cumberledge have construed Article
49 as a means of permitting full investigation and preparation by
the defense when the Government improperly interferes. Whether
a deposition is an appropriate tool for the latter purpose may bear
further consideration, especially since R.C.M. 701(e) makes clear
that such interference is improper. See also R.C.M. 906(b)(7).
Subsection (3)(B) is based on the first sentence of paragraph
117 b(1) and on paragraphs 75 b(4) and e of MCM, 1969 (Rev.).
See also United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R.
244 (1960).
Subsection (3)(C) is new and is self-explanatory.
Subsection (3)(D) is based on United States v. Cumberledge
and United States v. Chuculate, bothsupra.
(d) Action when request is approved. Subsection (1) and its dis-
ANALYSIS
App. 21, R.C.M. 702(h)
cussion are new. See Article 49(c). Detailing the deposition officer
is a ministerial act. When it is intended that the deposition
officer issue a subpoena, it is important that the deposition officer
be properly detailed. In other cases, proper detailing is not of
critical importance so long as the deposition officer is qualified.
Cf. United States v. Ciarletta, supra.
Subsection (2) is based on paragraph 117 b of MCM, 1969
(Rev.). That paragraph provided that the accused would have the
same rights to counsel as that for the trial at which the deposition
could be used. Under R.C.M. 502, the accused has the right to
qualified counsel at both general and special courts-martial. If a
summary court-martial is intended, ordinarily there is no need for
an oral deposition; instead, the summary court-martial should be
d e t a i l e d a n d p r o c e e d t o c a l l t h e w i t n e s s . U n d e r s u b s e c t i o n
(g)(2)(A) the accused at a summary court-martial is not entitled to
counsel for a written deposition. The first paragraph in the discussion
is based on United States v. Catt, 1 M.J. 41 (C.M.A. 1975);
United States v. Timberlake, 22 U.S.C.M.A. 117, 46 C.M.R. 117
( 1 9 7 3 ) ; U n i t e d S t a t e s v . G a i n e s , s u p r a . S e e a l s o R . C . M .
505(d)(2)(B) and analysis. The second paragraph in the discussion
is based on the second sentence in paragraph 117 b(2) of MCM,
1969 (Rev.). The rule does not prohibit the accused from waiving
the right to counsel at a deposition. See R.C.M. 506(d); United
States v. Howell, 11 U.S.C.M.A. 712, 29 C.M.R. 528 (1960).
Subsection (3) is new and reflects the ministerial role of the
deposition officer.
(e) Notice. This subsection is based on Article 49(b) and paragraph
117 b(4) of MCM, 1969 (Rev.). It is consistent with Fed.
R. Crim. P. 15(b). See generally United States v. Donati, 14
U.S.C.M.A. 235, 34 C.M.R. 15 (1963).
(f) Duties of the deposition officer. This subsection is based on
paragraphs 117 b(5), (7), and (8) and c(3) and (4) of MCM, 1969
(Rev.). It is organized to provide a deposition officer a concise
list of the duties of that office.
(g) Procedure. Subsection (1)(A) is based on paragraph 117 b(2)
of MCM, 1969 (Rev.); Fed. R. Crim. P. 15(b). See also United
States v. Donati, supra. Subsection (1)(B) is based on paragraph
117 b (6) and (7) of MCM, 1969 (Rev.). See also Fed. R. Crim.
P. 15(d). Subsection (2) is based on the first sentence of paragraph
117 b(2) and paragraph 117 c of MCM, 1969 (Rev.).
Subsection (2)(B) is based on paragraph 117 c of MCM, 1969
(Rev.). Note that if the accused and counsel can be present, it
ordinarily is feasible to conduct an oral deposition. Written interrogatories
are expressly provided for in Article 49.
Subsection (3) is new and is based on Article 49(d) and (f), as
amended, Military Justice Act of 1983, Pub. L. No. 98–209,
§ 6(b), 97 Stat. 1393 (1983). The convening authority or military
judge who orders the deposition has discretion to decide whether
it will be recorded in a transcript or by videotape, audiotape, or
similar material. Nothing in this rule is intended to require that a
deposition be recorded by videotape, audiotape, or similar material.
Factors the convening authority or military judge may consider
include the availability of a qualified reporter and the availability
of recording equipment. See also United States v. Vietor, 10 M.J.
69, 77 n.7 (C.M.A. 1980) (Everett, C.J., concurring in the result).
(h) Objections. This subsection is based on the second and third
sentences of the penultimate paragraph of paragraph 117 b of
MCM, 1969 (Rev.) and on Fed. R. Crim. P. 15(f). The waiver
provisions are more specific than in paragraph 117 b in order to
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