It’s been a full weekend at Casa CAAFlog, leaving me with insufficient time to offer a thorough analysis of United States v. Cabrera-Frattini, __ M.J. ___, No. NMCCA 200201665 (N-M. Ct. Crim. App. Feb. 28, 2008).

Here’s the most important take-away from Cabrera-Frattini: NMCCA will continue to apply the portions of Ohio v. Roberts, 448 U.S. 56 (1980), and Delaware v. Fensterer, 474 U.S. 15 (1985), that held that the Confrontation Clause is satisfied where the defense had a previous opportunity to cross-examine an absent witness without consideration of the effectiveness of the previous questioning.

In Cabrera-Frattini, charges arose from the accused’s “alleged sexual involvement with a teenage minor, TO.” Cabrera-Frattini, slip op. at 3. TO didn’t testify at the Article 32 and the military judge later ordered that she submit to an oral deposition. Id., slip op. at 203. Both the TC and DC questioned her at the deposition. Id., slip op. at 4. During the actual trial, she was hospitalized and unavailable to testify. Id. A portion of her videotaped deposition was played for the members. Id.

NMCCA held that the defense’s opportunity to cross-examine TO was sufficient, without regards to the effectiveness of that cross-ex. Id., slip op. at 5-6.

8 Responses to “A quick look at Cabrera-Frattini”

  1. Anonymous says:

    According to NMCCA, the cross-ex was Constitutionally effective even though the DC was not given any previous access to the victim. In fact, the deposition was a judicially ordered remedy for the DC not being able to interview the victim. So it was the defense’s first opportunity to actually talk to her and get info for a later actual cross-ex at trial.

    Instead, surprise, she’s not coming to trial, and that deposition where they were supposed to be getting background info serves as their actual cross.

    Sketchy. I find it hard to believe that this type of “surprise, you just had your cross-examination” procedure is fair or Constitutionally effective.

  2. Anonymous says:

    I don’t feel too sorry for the defense here. What is it they would have asked at trial that they were unable to ask at the deposition? At the very least, this opinion will place defense counsel on notice that when given an opportunity to depose the victim prior to trial–they had better take full advantage of it.

  3. Anonymous says:

    If the defense didn’t jump at any opportunity to interview/epose or even talk to THE victim then they failed to do their job and looking for post trial remeies f a sloppy job aren’t justified. Doesn’t the rule only require access to the witnesses? Why would a DC think they have the oportunity to talk to any witness any time they desire? Certainly not the case in federal court which both CAAF and NMCCA take great lengths to square themselves with…

  4. Anonymous says:

    I think counsel in the future may benefit from NMCCA’s endorsement of depositions, at least in part, as discovery vehicles:

    The Analysis of R.C.M. 702(a) notes that federal courts have consistently construed the rule’s counterpart, Federal Rule Of Criminal Procedure 15(A), as a device used to preserve future testimony and not as a discovery vehicle. United States v. Varbaro, 597 F.Supp. 1173, 1181 (S.D.N.Y. 1984); see United States v. Adcock, 558 F.2d 397, 406 (8th Cir. 1977)(citing 8 J. Moore’s Federal Practice P 15.01[3] at 15-8 (1976)). Military practice provides for somewhat more flexible use of depositions in circumstances unique to the military, such as securing the sworn testimony of a witness prior to trial who was improperly found to be unavailable at an Article 32, UCMJ, investigation. United States v. Chestnut, 2 M.J. 84 (C.M.A. 1976). Additionally, as in this case, a deposition may be ordered to allow the defense an opportunity to cross-examine an essential witness who was not available at the Article 32, UCMJ, investigation. United States v. Chuculate, 5 M.J. 143 (C.M.A. 1978).


  5. Anonymous says:

    I’d like to jump on the bandwagon of if you got your shopt take it, but what about MRE 412? Did the trial judge order the deposition to be closed, was the DC allowed to ask questions concerning MRE 412, were there any other limit on the deposition? I would have liked some discussion of the issue since mistake of fact as to age was probably what they were arguing, although it is arguable whether 412 allows that.

  6. Anonymous says:

    How about State v. Lopez, a case that has been bouncing around the florida appellate arena since in the birth of Crawford. The recent FLA supreme court decision seems to indicate that a pre-trial deposition did not satisfy 6th amendment.

  7. Jeffrey says:

    On the facts of Cabrera-Frattini, TO was the youngest of three alleged victims. The older two, age 13 and 14, were each over 5’10” tall. The main co-accused in the case, Cpl McNamara, claimed that he met the 13 year old when she was stripping at her mother’s strip club, or Gentlemen’s Club if you prefer. The charges relating to the 13 and 14 year old were clearly problematic, so we dropped them. TO, however, was 12 and looked 12. Further, these 3 girls had been making comments about their middle school in front of the co-accuseds, so a mistake of fact defense as to TO’s age was hard to pull off.

  8. Anonymous says:

    A reading of the ROT and opinion of C-F will also show that the IMC refused to interview TO unless it was a deposition, it was hardly a case of “here is your one shot.” IMC refused his other informal chances. If the IMC had not refused the interview, but done it vice the deposition, and then TO had been unavailable for trial, well, you can guess the outcome of that one….. The IMC created this evidence against his client with the depo. Not IAC, but he rolled the dice on a strategy and lost big time.