The Role of the Deposition in Military Justice

• Author: BY Robinson O. Everett
• Pages: 05

1. INTRODUCTION

An attorney receiving his first introduction to courts-martial is often surprised by the role allotted to the depoaition. Instead of being used in military justice chiefly for discovery or as a basis for possible later impeachment of B witness, the deposition is frequently itself offered in evidence--aometimea by the defense but more often by the prosecution.

Many exigencies peculiar to the Armed Services undoubtedly led Congress to authorize in Article 491 of the Uniform Code of Military Justice-and in previous parallel legislation-a use of depositions unparalleled elsewhere in American criminal law administration. "For instance, when the Armed Services are operating in foreign countries where there is no American subpoena power, it might be impossible to compel a foreign civilian witness to come to the place where the trial is held, and yet he may be quite willing to give a deposition. Furthermore, military life is marked by transfers of personnel-the military community being much more transient than most groups of civilians. To retain military personnel in one spot so that they will be available for a forthcoming trial, or to bring them back from a locale to which they have been transferred, might involve considerable disruption of military operations. Likewise, in combat areas there is oftan considerable risk that a witness may be dead before trial date, In which event, were civilian rules to be followed, his testimony would be loat."2

Becauee of such "necessities of the services", the Court of Military Appeals has upheld the fundamental legality of militerg depositions,8 but at the same time has emphasized in regard thereto

*Visiting Aenoeiate Prafeaaor Duke University Law Sehael, and Raetieinr Attomeg; Former Commirnioner U. S. Court of Military Appeals; author, Everett, Military Justice in the Armed Forces oi the U.S.; Asaociste Editor, Law & Contemporary Problems, Journal of Legal Education; A.E. and LL.B. Harvard University: affieer in Air Farce Reserve.

110 USC 5 849 (1952 d.,

Supp. V).*Everett, Military Justice in the Armed Fereee of the United States 221-2 (1966).

*U.S. V. Sutton, 3 USCMA 220, 11 CMR 220 (1963); U.S. v. Pamiih, 7 USCMA 337,22 CMR 127 (1956).

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"that for the mmt part they are tools for the prosecution which cut deeply into the privileges of an accused, and we have, there fore, demanded strict compliance with the procedural requirements before permitting their use."' It is the purpose of this paper to explore some aspects of this "strict compliance", and to determine whether, under the Court's interpretation thereof, much basis remains for the oft-erpreased fear that prosecution use of depositions in a court-martial deprives an accused of his right to confront and cross-examine the witnesses against him and to have the full benefit of counsel.

1. Oral uevsua Written

   Contrary to previous Navy and Coast Guard practice,' the Uniform Code specifically authorizes the taking of either "oral or written'' depositions. The former are taken by counsel on oral examination of the deponent; the latter on the basis of written interrogatories and cross-interrogatories submitted to a witness to be answered by him under oath. United States 2). Sutton' concerned the legality of the written deposition.

   One of Sutton's appointed assistant defense counsel, to whom written interrogatories had been submitted, indicated in writing on the deposition form that he did not a r e to tender any cross. interrogatories; apparently he made no objection whatsoever either to the taking of the deposition or to the taking of a written, rather than an oral deposition. At the trial the accused had a different attorney, who objected to admission of the deposition on the ground that it violated the right of confrontation guaranteed by the Sixth Amendment.

   Judges Latimer and Brcaman rejected the defense contention, but Chief Judge Quinn embraced it enthusiastically. At Arst glance the Chief Judge's dissent there might be taken to mean that, under his view, neither a written or oral deposition can be admissible over defense objection, and that an accused always isentitled to require that any witness tastify personally in the courtroom. Obviously, from the accused's standpoint, maximum protection is provided under these circumstances; any trial lawyer will verify that some witnesses testify quite differently-and more conservatively-when they are in court and in the presence of the pereon against whom their testimony is being offered. Moreover, as the Uniform Code itself recogni~es,~the demeanor of a witness

   + U.S. Y. Vdi. 7 USCMA 60,64,21 CMR 186,190 (1956).lSee US. 7. Suttan. auwa note 3; U.S. V. Gomeli, 3 USCPA 292, 11 CMR7 Compare Article 6610) UCMJ.

   232 11953).

   6 supla no- a.

   THE ROLE OF THE DEPOSITION IN MILITARY JUSTICE

   can be all-important in the evaluation of his credibility; yet it cannot be reflected in the cold pages of a deposition.

   Upon more detailed analysis of Chief Judge Quinn's opinion, it seems, however, that, although he recognizes the undeniable advantages of a witness' preaence before the court-martial, his chief concern is with the preservation of the accused's right of cross-examination. Indeed, he accedes to Judge Latimer's conclusion-which, in turn, draws heavy support from Dean Wigmore' -that cross-examination is the eswnce of confrontation. Under this approach the witness' presence could, in some instancea, be dispensed with if he had previously been subjected to effective cross-examination-just as testimony offered at a former trial0 or at a pretrial Article 32 investigation'o is sometimes admissible in evidence because the defense's right to cross-examination has been preserved.

   Whether Chief Judge Quinn would consider the presence of the accueed himself at the taking of a deposition to be a prerequisite for effective cross-examination is not made clear in his Szltta dissent. Certainly there is nothing therein which would be irreconciliable with a view that effective cross-examination could be achieved by a qualified lawyer without the presence of the accused, if there had been ample opportunity for communication between them before the taking of the deposition,

   After Judge Ferguson had joined the Court of Military Appeals, an unsuccessful attempt was made in United States v. Parriah11 to have the Court overrule the Sutton decision. The depositions in question had been taken on written interrogatories, and Coionei Parrish's counsel-me of them a civilian attorney-had drafted extensive cross-interrogatories. Apparently no request was made that oral depositions be taken. Due to the nature of some of the answers given to the cross-interrogatories-answers which they contended were evasive-the defense counsel requested the law officer for a...