The Military Oral Deposition and Modern Communications

• Author: By Lieutmnt Peter J. McGoaern
• Pages: 03

This wtiele deals with the problem in obtaining depositions and having them admitted into evidence, when the parties incolved are apart due to circumstances beyond their oon-trol. The author oovers the procedures in taktng deposi-tiwns, and then debes into a~emof mdern communications which cmld facilitate the taking of depoistions, while retaining the right of confrontation, when the parties are apart. The individuel judge advocate, it is concluded, must be ingenious in requesting new ways of taking depositions, so that such modern methods will be accepted by the oouvta.

1. INTRODUCTION

Within the scope of this article, it is intended to discuss the present and possible future role of the oral deposition in military law. The first part of the presentation will be devoted to establishing the present legal position of the oral deposition. All the minute and various legal questions that have arisen with respect to the contents of depositions are beyond the scope of this discussion, as are the historical aspects of the use of depositions. These Problems have been developed elsewhere.' It is intended to develop here a practical dissertation on what legal criteria must be met in order to pave the way for the taking of an oral deposition, and then show step by step what must be done in order to take a procedurally correct oral deposition. The main thrust of Part I1 is directed toward the development of a practical syllabus of

'This article was adapted from B thesis presented to The Judge Idweate General's School. U.S .Army, Charlottesvllie, Virginia, while the author was B member of the Seventeenth Advanced Course. The opinions and eonelusiona preaented herein are those of the author and do not necessarily represent thp views of The Judge Advocate General's School or my other govern mental apenev

_ 1

**JAGC, U.S. Navy: Instmetor, US Xaual Justice School, Newport, Rhode Ialand; A.B.. 1961, Kotre Dame University: J.D..

1964, Fordham

Law School. Admitted to practice before the bars of the State af New Yorkthe F t e d States Court of Military Appeals, and the U.S. Supreme Cour;

See Burke, Dspositiona (unpublished thesis in The Judge Advocate General's School library, Charlotteaville, Va.); Mecarthy, Deposition8 in Court*-Martial (unpublished thesis in The Judge Advocate Generai'a Sehwl, Charlottearille. Vs.); Everett, The Rolc oi the Dspmifion m Mihlaw Ju~ics, 7 MIL. L. REV. 131 (1960). Stubbs, DwoBitionB JAG J. Sep. 1957, p. S. Miliua Dapoaztiona in Court-Martial Triols, JAG J.,'Oct. 1 9 k p. 6: JAG J., Apr: 1958, P. 7: JAG J., Sep. 195S, p. 13.

deposition requirements, and workable answers to the evidential and procedural problems are proposed.

Part I11 is devoted to a re-evaluation of the use and role of an oral deposition in light of the ever-increasing technological changes in the field of electronics and telecommunicatlons. Our society is developing new and ever better means of recording and presenting the testimony of an absent witness to the triers of fact. Are these pew means of communication applicable and legally sufficient to stand and be admissible under the rules of evidence? Part 111 seeks to explore and answer this and the many associated questions.

11. THE ORAL DEPOSITION

1. THE DEPOSITION

   The threshold inquiry is: "What is a deposition?" Wigmore, in his treatise an Evidence, states:

   The term "deposition". . . is now confined 1x1 meaning exd~~iivoly to

   testimony delivered in writing, i.~.,testimony which in legal eontern- piation doer not exist apart from a writing mad8 or adopted by the wtness '

   Carpus di~ris Secundum relates that a deposition is: [Tlhe testimony of a witness, taken in writing, under oath

   or affirmation. before some judieiai officer, in answer tc intermgab-pies, DIS~ or written, and with the opportunity of ero8s-ex8mina-tlo".'

   Depositions are authorized for use by both the Federal Rules of Civil and Criminal Procedure.' The use of depositions in American military law has a long judicial history,' since it was first specifically authorized in 1779.# The military use of depositions is authorized by statute and implemented by paragraphs 114, 117, and 145e of the Manual for Courts-Martial, United States, 1969 (Revised edition).' The Manual defines a deposition as

   '111 J. WICMORE, EI~ENFE

   0 802 (3d ed. 1WO)'264 C.J.S. Deposrtiom 5 1 (1965).'Fed. R. Clv. P. 2 6 3 3 : Fed. R. Crim. P. 15.'United States V. Suttan, 3 U.S.C.M.A. 220, 11 C.M.R. 220 (1953). 'Id. at 223, 11 C.M.R. at 221. Sea d m Melnick, The Deiendant'i Right to Obtain Evidence: An Eramtnatzan a( the jMditaw Vzewmint, 29 ML. L.Rm. 1, 19 (1965).

   I UNINRM CODE

   OF YILIT*RY JUSTICE art. 490 [hereafter erlled the Code and cited 86 UCMJI.

   'Hereafter d i e d the Manual and cited LIS MCM. 1369.

   44 A M

   ,*an

   ine witnesses against him. The accused has the right to have wit-nesses material to his defense present ~n court, to testify on the merits, and if he 1s found guilty, to present mitigation and extenuation evidence. TThere B depo3ition is used, the accused has, in almoit ai1 cases, the right to be represented by lawyer counsel at the taking thereof \There a deposition 1s received in evidence against the accused, he has the right to hare the court receive proper and correct instruction on the consideration and might to be given to testimony by deposition.

   1. TheRaght of Contrmtotim and Cross-Esarntnutton.

   As recently as Barber Y. Page,'. the Lhted States Supreme Court reaffirmed the right of a defendant to confront a government witness against him. The court said:

   Yany years ago this Court stated that "[rlhe (ale1 primary object of the [Confrantarm Clause of the Sixth Amendment] . .

   was to ~revenr deDoslrioni or ex paits affidavits . being used

   egamrt the pmmer I" he" of a personal examination and eroii-ex-aminarm of the ~itnesr

   ~n which the accured her an apportunlw not only of tesr.ng the reeullection and sifting the cmseienee of the witness, but of compellmg h m to stand face to face with the lnry in order that they may look at h:m, and judge by his derreanar upan the stand and the manner in which he gives hir testimony whether he is worthy of belief" Plaftox 9. rnited Stares, 1% U.S 237, 242-243 (1895) More recently, I" holding the Sixth Amendment righc of eonfronta:m applicable IO the States through the Fourteenth Amendment. this Court ra.d 'There are few subjects. prhapq upon which this Court and ocher courti ha,e been more marip unanimoui rhan in their expresmnr of behef that the right of confrontation and ~ m ~ s - e ~ a m i n a t m is an ei~ential and fundaments! requirement far the kind of fan ~ r m whxh is this cauntrfs constitutional goal." Pazntrr 7.. Tezas, 380 US.

   400, 40: 11965) I'

   Within the military law of the United States there is the npht of "Military Due Process." In l-,zited States v. Clay,]. the United States Court af Nilitary Appeals laid down the basis of the concept. The court stated:

   There m e certain standards in the military BCCYSB~O~BI eyatem

   which hare been ipecihcally ret by Congress and Bhieh we must demand be observe0 in the tm1 of m~llrary affenbes. . We conceive thebe rights to mold into B pattern s~milar to that developed in fed.

   " .

   "YCM,

   1969. l l i b ( 2 ) "380 LS. 719 (19681. "id. at ill.

   1 U.S.C.MA. 74, 1 C.XR. 74 (1951)

   DEPOSITIONS

   . . . [n]e belieie Congrere intended, in io far BP reasonably posnble, to place military iuitice on the same plane as eivilian ius-tiee . . . A cursory inspection af the Uniform Code of Military Jus.tiee , . . diaelones that Congress granted to an seeused the follaaing rights ahieh parallel those accorded TO defendante m civilian courts: To be informed ai the charges against him; to be confrontedby Witnemei tertifying against him; ta erars-examine aitnesses farthe government, . .

   In Cnited States \,. Sutton,Quinn stated:in a rigorous dissent Chief Judge

   I have abnalutely no doubt in my mind that aecvsed persona inthe military service o i the Nation are entitled to the Tights and privileges reevred ta ail under the Conrtitvtlon of the United States, unlesa excluded directly or by nece~~aryimplication by the pmvi-&ions oi the Canstitvtion

   Chief Judge Quinn continued: "Among the righta and privileges protected by the Constitution, and which are not directly or indirectly inapplicable to the military, is the right of an accused 'to be confronted with the witness against him.' "

   The Court of Military Appeals overruled Sutta, and affirmatively adopted the position of Chief Judge Quinn in the case of Cnited States Y. Jaeoby.gg The court said:

   [[It is appamnt that the protection in the Bill of Rights, ex-cept those which are expre~dyor by necessary implication mapplieable, m e available to members of OUT armed forces . , . . Moreover, it is equally clear that the Sixth Amendment guarantees the amused the light perionally to confront the w~tnesso~against him:o

   2. The Right to iwaterial Witnesses.

   Article 46 of the Code states: "The . , . defense counsel. . , shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations BS the President may prescribe."" The President has prescribed such regulations in paragraph 115 of the Manual, which states: "The trial counsel will take timely and appropriate action to provide for the attendance of those witnesses who hare personal knowledge of the facts at issue in the case for both the prosecution and the defense."16 The Manual further states, however, that the testimony of the

   witness must be "material and necessar

   Manual language has been strengthened by vigorous decisions of the United States Court of Military Appeals. In Cnited States Y.

   Thornta,8. the court safeguarded the right of the accused xhen it said:

   .An accused cannot be forced to preient the testimony of a material wilnes? on his behali by way ai bfipulalm 01 deposition On the contrary he I: ent1f:ed to hsie the witness testify directly from the wtners sfard :n the courtroom'

   Again in l ~ m t r d States F. Sweeneg. the...