As Anonymous #4 observed in commenting on United States v. Cabrera-Frattini, __ M.J. ___, No. NMCCA 200201665 (N-M. Ct. Crim. App. Feb. 28, 2008), one significant aspect of the case may be publicizing the potential use of depositions for purposes other than testimony preservation.

The deposition is one of the most common and important discovery tools in civil litigation. It would be rare for an important witness in a federal civil trial to testify without already having been examined under oath by the opposing party’s counsel. Knowing what the witness previously said under oath allows the cross-examining counsel to highlight any changes in the witness’s direct examination testimony. It is also invaluable to counsel who heed the lesson that Atticus Finch drilled into his daughter Scout: “Never, never, never, on cross-examination ask a witness a question you don’t already know the answer to, was a tenet I absorbed with my baby-food.” Harper Lee, To Kill a Mockingbird 179 (Popular Library 1962) (1960).

But depositions are used rarely in civilian or military criminal litigation, where their primary function is to preserve the testimony of a witness who will be unavailable at the time of trial -– the deposition de bene esse. The Manual for Courts-Martial reflects this traditional view of depositions in criminal cases. R.C.M. 702(a) provides, “A deposition may be ordered whenever, after preferral of charges, due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at an investigation under Article 32 or a court-martial.” The Manual‘s drafters explain:

“Exceptional” means out of the ordinary. Depositions are not taken routinely, but only when there is a specific need under the circumstances. As used in Fed. R. Crim. P. 15(a) “exceptional circumstances” is generally limited to preserving the testimony of a witness who is likely to be unavailable for trial. A deposition is not a discovery device under the Federal rule. The Court of Military Appeals has held that depositions may serve as a discovery device in certain unusual circumstances. [See, e.g., United States v. Killebrew, 9 M.J. 154 (C.M.A. 1980).] Consequently, “exceptional circumstances” may be somewhat broader in courts-martial. Nevertheless, the primary purpose of this rule is to preserve the testimony of unavailable witnesses for use at trial.

Manual for Courts-Martial, United States, R.C.M. 702(a) drafters’ analysis at A21-35(2008 ed.) (internal citations omitted).

But both the drafters’ analysis and R.C.M. 702 itself adopt an impermissibly narrow view of depositions’ use in court-martial practice. Article 49 of the Uniform Code of Military Justice, which adopts a far more liberal standard for depositions, trumps them both.

Article 49 provides, in part, that “any time” after charges have been preferred, “any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, [the convening authority] forbids it for good cause.” UCMJ art. 49(a), 10 U.S.C. § 849(a) (2000). Article 49 establishes a clear default position: a deposition is presumptively permissible unless there is good cause to forbid it. R.C.M. 702, however, impermissibly flips that presumption by providing that a military judge (or convening authority pre-referral) should not authorize a deposition absent exceptional circumstances. So both R.C.M. 702(a)’s burden and standard violate Article 49.

R.C.M. 702(b) also violates Article 49 by changing the procedures for noticing a deposition. Under Article 49, “The party at whose instance a deposition is to be taken shall give every other party reasonable written notice of the time and place for taking the deposition.” This mirrors the practice in federal civil litigation, where the party seeking the deposition issues a notice of deposition to all other parties. See Fed. R. Civ. P. 30(b). Yet R.C.M. 702(b) provides that after referral, “the military judge may order that a deposition be taken on request of a party.” Nothing in Article 49 suggests that the military judge is involved in ordering a deposition; rather, a military judge’s involvement appears to be limited to stopping depositions upon a showing of good cause. Federal Rule of Civil Procedure 30(a) generally allows a party to take up to 10 depositions without any necessity for judicial intervention. Article 49(b) and (d) suggest that Congress meant to follow a similar procedure, though without a numerical limitation.

Why is Rule for Courts-Martial 702 so inconsistent with Article 49? The drafters’ analysis indicates the reason: R.C.M. 702(a) “is based on the first sentence of Fed. R. Crim. P. 15(a).” MCM, R.C.M. 702(a) drafters’ analysis at A21-35. How odd. Obviously the drafters should have based the Rule for Courts-Martial governing deposition practice on the Uniform Code of Military Justice, not a Federal Rule of Criminal Procedure – especially since Fed. R. Crim. P. 15(a) is inconsistent with Article 49. Rule 15(a) provides, in relevant part, “A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice.” That standard is irreconcilable with Article 49. And as the UCMJ’s legislative history confirms, the UCMJ’s drafters intended military deposition practice to be broader than that in federal civilian criminal practice. See Hearings Before a Subcomm. of the Comm. on Armed Services, House of Representatives, on H.R. 2498, A Bill to Unify, Consolidate, Revise, and Codify the Articles of War, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard, and to Enact and Establish a Uniform Code of Military Justice, 81st Cong., 1st Sess. 696-97, 1065 (1949).

Where the Manual for Courts-Martial differs from the Uniform Code of Military Justice, there is no question which prevails. Article 36(a) declares that Manual provisions “may not be contrary to or inconsistent with” the UCMJ. 10 U.S.C. § 836(a) (2000). So where they conflict, “the Manual provision must yield to the statute.” United States v. Swift, 53 M.J. 439, 451 (C.A.A.F. 2000).

Of course there may be tactical reasons not to depose some potential witnesses. A counsel may not want to tip off opposing counsel about likely lines of cross-examination. A counsel may not want to expose his or her own witnesses to retaliatory depositions. And if there is any chance that a hostile witness won’t appear at trial, a deposition might be particularly undesirable because it would provide the opposing counsel with admissible evidence that might not otherwise have been available, as happened in Cabrera-Frattini. But when a counsel believes it is in his or her tactical interest to depose an opposing witness before trial, Article 49 provides a sound legal basis for doing so.

4 Responses to “Revisiting Cabrera-Frattini”

  1. Anonymous says:

    I think you’ve got it exactly right. I’ve found more TCs/SJAs/CAs/MJs beginning to recognize the value of depositions, but when confronted by
    the MCM provisions they conclude the purposes for which a deposition may be ordered have been strictly limited. I hope Cabrera — and your posting — will persuade them to act on their better instincts.


  2. John O'Connor says:

    One thing that I thought NJS didn’t really do very well (or maybe I was too dense to perceive it) was to explain the relationship between the UCMJ, the MCM, and the JAG Manual. They are not three equal sources of the law, though I think most JAs treat them as such.

  3. ag says:

    What about the line of cases interpeting Art 49(a) narrowly? See, e.g., discussion to R.C.M. 702(c)(3)(A). I’ve seen the suggested tactic work for civilian witnesses post-referral who elected not to attend the Art 32 hearing, but for military/govt witnesses, doesn’t the right to demand production at the 32, take verbatim testimony (if allowed), and cross examine under oath achieve the same effect?

    Is there a military-unique reason (other than Art 49’s text) that drives a need to differ from the Fed. R. Crim. Pro. and the settled rule in federal circuit courts? See 25-615 Moore’s Federal Practice — Crim Pro § 615.02 n.2 (2007) (listing cases from 1st, 2nd, 5th, 8th, 9th, 10th, and 11th Cirs holding criminal depositions are not discovery devices). And, how would adopting Fed. R. Civ. Pro.’s “right to 10 depositions” impact the current system?

    Fed. R. Crim. Pro. 15 advisory committee notes (174 amds) suggest federal criminal practice circa 1949 did not contemplate depositions as discovery, and the perfunctory leg hist for Art 49 doesn’t persuade me Congress deliberately meant to establish a broad rule in military practice.

    But, I do endorse CAAFlog’s astute observation that depositions are too rarely used in courts-martial, and can be invaluable. We used a videotaped one recently (witness with medical travel restriction). It was almost as good as live testimony, but make sure you have logistics and editing ready!

  4. CAAFlog says:

    I am sure that JO’C was kidding in what he said, but he makes an important point — a point that answers AG. Of course, even a newbie lawyer knows that a statute trumps a presidential reg, which trumps a secretarial reg. (Of course the way the military justice system construes regs differs from the way that most other courts do so, but for very good reasons. But in either the military setting or a more traditional (but inapplicable) APA setting, that same basic rule would prevail.)

    So the answer to AG is that there may or may not be good reasons for military practice to differ from the Federal Rules of Criminal Procedure, but Congress clearly chose to establish a very different regime for the military justice system than the Judicial Conference and Congress chose for Article III criminal litigation. And neither the Joint Services Committee nor the President has the right to second guess that congressional determination and decide that the Federal Rules of Criminal Procedure model should be followed instead.

    Oh yeah — and greetings from Florida!