THE PROSECUTION/S USE OF DEPOSITIONS
IN MILITARY AND CIVILIAN TRIALS:
AVIOLATION OF THE RIGHT OF CONFRONTATION?
WILLIAM H, KINCAID
THE PROSECUTION'S USE OF DEPOSITIONS
IN MILITARY AND CIVILIAN TRIALS:
A VIOLATION OF THE RIGHT OF CONFRONTATION?
The Sixth Amendment to the Constitution of the United
States guarantees the criminal defendant several of his most
fundamental rights, including "the right to a speedy and
public trial," the right "to be informed of the nature and
cause of the accusation," the right "to have the Assistance of
Counsel for his defence," and the right "to have compulsory
process for obtaining witnesses in his favor."
One of the
most important rights to an accused at trial is, however, the
right "to be confronted with the witnesses against him."l
This "right of confrontation" provides at least three
important benefits for the criminal defendant:
First, it
gives the accused the right to cross-examine each witness
against him; Second, the defendant has the right to be personally present when the witness is giving his testimony;
Third, the court (or trier of fact) has the opportunity to
observe the demeanor of the witness, thus allowing the court
to better evaluate the witness' credibility.
Nevertheless, the criminal defendant's right of confrontation is not absolute, and it is subject to certain
well recognized exceptions, such as the rules of evidence
which allow dying declarations or former sworn testimony to
be admitted in evidence--although they would obviously violate
a strict interpretation of the letter of the Sixth Amendment.
That there are certain limitations and exceptions was stressed
by the United States Supreme Court in Mattox v. United states: 2
We are bound to interpret the constitution in
the light of the law as it existed at the time
it was adopted, not as reaching out for new
guaranties of the rights of the citizen, but as
securing to every individual such as he already
possessed as a British subject--such as his
ancestors had inherited and defended since the
days of Magna Charta. Many of its provisions
in the nature of a bill of rights are subject
to exceptions, recognized long before the adoption
of the constitution, and not interfering at all
with its spirit. Such exceptions were obviously
intended to be respected. A technical adherence
to the letter of a constitutional provision may
occasionally be carried further than is necessary
to the just protection of the accused, and further than the safety of the public will warrant.
For instance, there could be nothing more directly
contrary to the letter of the provision in question
than .the admission of dying declarations. They
are rarely made in the presence of the accused;
they are made without any opportunity for examination or cross-examination, nor is the witness
brought face to face with the jury; yet from
time immemorial they have been treated as competent testimony, and no one would have the hardihood at this day to question their admissibility.
They are admitted, not in conformity with any
general rule regarding the admission of testimony,
but as an exception to such rules, simply from
the necessities of the case, and to prevent a
manifest failure of justice. 3
The Supreme Court has ruled, however, that the use of
depositions 4 by the prosecution in federal criminal cases
does not fall within an exception to the accused's right of
confrontation:
... the Constitution of the United States ... must
control the action of the courts of the United
states in all criminal prosecutions before them.
We are unwilling to hold it to be consistent with
the constitutional requirement that an accused
shall be confronted with the witnesses against
him, to permit the deposition or statement of an
absent witness taken at an examining trial to be
read at the final trial, when it does not appear
that the witness was absent by the sug ·~estion,
connivance, or procurement of the accused, but
does appear that his absence was due to the
negligence of the prosecution. S
Furthermore, the use of depositions by the prosecution is now
prohibited by the Federal Rules of Criminal procedure~6 which
provide that a deposition may be taken only upon a court order
issued after a motion made by the defendant or by the witness
(if, in the latter case, the witness has been jailed because
he could not or has not posted an appearance bond).
The court
may grant this motion only if it can be shown that the deponent
may be unable to attend trial to testify, that his testimony
is material, and that
~.
it is necessary to take his deposition
in order to prevent a failure of justice."
There is no pro-
vision for allowing the prosecution to have a deposition taken.
Tile mil i tary , _ ou . the other- ,hau-d,
~ ..has
for almost two hundred
years allowed the prosecution--as well as the defense--to
both take and use depositions in courts-martial against
criminal defendants.
The American Articles of War enacted
on May 31, 1786--over five years before the Sixth Amendment
was adopted--provided:
On the trials of cases not capital, before courtsmartial, the depositions of witnesses, not in
the line or staff of the army, may be taken before
some justice of the peace, and read in evidence,
provided the prosecutor and person accused are
present at the taking of the same. 7
Twenty years later the military's provision for depositions
was amended by adding the phrase
thereof" to the above quotation. 8
"or are duly notified
The Article underwent a
wholesale revision in 1874, but the prosecution was left on
equal footing with the defense:
The depositions of witnesses, residing beyond
the limits of the State, Territory, or district
in which any military court may be ordered to
sit, if taken on reasonable notice to the opposite party and duly authenticated, may be read
in evidence before such court in cases not capital. 9
The current statutory law regarding depositions in the
military is set forth in Article 49 of the Uniform Code of
Military Justice, which provides (in part) :
(a) At any time after charges have been signed
... any party may take oral or written depositions
unless the military judge ... forbids it for good
cause. If a deposition is to be taken before
charges are referred for trial, such an authority
may designate commissioned officers to represent the prosecution and the defense and may
authorize those officers to take the deposition of any witness.
(b) The pa~ty at whose instance a deposition
is to be taken shall give to every other party
reasonable written notice of the time and place
for taking the deposition.
(c) Depositions may be taken before and
authenticated by any military or civil officer
authorized by the laws of the United states or
by the laws of the place where the deposition
is taken to administer oaths.
(d) A duly authenticated deposition taken
upon reasonable notice to the other parties, so
far as otherwise admissible under the rules of
evidence, may be read in evidence before any
military court or commission in any case not
capital, or in any proceeding before a court
of inquiry or military board, if it appears-(1) that the witness resides or is beyond
the state, Territory, Commonwealth, or
District of columbia in which the court,
commission, or board is ordered to sit, or
beyond 100 miles from the place of trial
or hearing~
(2) that the witness by reason of death,
age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to
process, or other reasonable cause, is
unable or refuses to appear and testify
in person at the place of trial or hearing~ or
(3) that the present whereabouts of the
witness is unknown.
(e) Subject to subsection (d), testimony by
deposition may be presented by the defense in
capital cases.
(f) Subject to subsection (d), a deposition
may be read in evidence in any case in which
the death penalty is authorized but is not
mandatory, whenever the convening authority
directs that the case be treated as not capital,
and in such a case a sentence of death may not
be adjudged by the court-martial. 10
It is rather obvious that the laws enacted by Congress
to govern the use of depositions in military courts-martial
differ in a number of respects from the laws adopted by
Congress to govern federal criminal procedure.
In the mili-
tary, there is no requirement that a deposition be taken on
a court order. ll
This is not, however, as great a departure
from the civilian rule as it might first appear, since the
military judge (or convening authority if the case is not
assigned for trial) has the power to forbid the taking of the
depositions "for good cause.,,12
Thus, although a court order
may not be required in the military, the court's approval is
needed.
Paragraph l17b(1) of the Manual for Courts-Martial
(hereinafter refered to as the Manual) also indicates that
the military and civilian rules are not too far apart on this
issue.
After stating that a request for permission to take
a deposition will "normally" be submitted to the convening
authority, the Manual mandates that "If a request to take a
deposition originates after the commencement of a trial, it
will be submitted to the military judge or the president of
a special court-martial without a military j .udge."
supplied)
(emphasis
It should also be noted that opposing counsel are
permitted to inspect the request and any accompanyinq papers,
and that the request must include not only the reasons for
taking the deposition, but also the points desired to be
covered therein. 13
This is a somewhat more substantial
difference from the requirements imposed by the Federal
Rules of Criminal Procedure, which require that the motion
for depositions be allowed only upon a showing that the
deponent may be unable to attend trial to testify, that
his testimony would be material, and that the deposition is
necessary in order to prevent a failure of justice. 14
Neither the civilian nor the military rules requires
that the defendant be personally present, although it has
been held that the Federal criminal rule gives the defendant
the right to be present if "his presence ... is so necessary
to his defense as to be considered a part of the adequacy
of his representation by counsel."lS
Case law has changed
the military rule in this regard, as will be noted later in
this paper.
Another distinction in the statutory provisions concerns
the use of a deposition once it has been taken.
Rule lS(e)
of the Federal Rules of Criminal Procedure indicates that
Congress intended that depositions should not be allowed in
evidence unless the deponent is in fact unavailable as a
witness:
Subject to the rules of evidence, a deposition may
not be used unless the deponent is dead, sick, out of the
United States or otherwise not amenable to process.
military rule is less strict.
16
The
In addition to allowing use
of depositions where the deponent is actually unavailable,
the Code allows depositions to be read in evidence where
it is inconvenient for the deponent to appear at the court, 117
h
th e d eponen t
t wh ereab ou t s 1S
' unk nown,18
mart1a
, , were
s I
presen
and where by reason of imprisonment, military necessity, or
other reasonable cause, the witness is either unable or
refuses to appear and testify in person at the place of
trial or hearing. 19
Perhaps the most important (a't least, most important
to the person being court-martialed) distinction between the
civilian and military rules concerning depositions is that
the military prosecution is free to both take and use (read
in evidence at the court-martial) depositions in any noncapital case.
It has been noted above that the prosecution
and the defense are on rather equal footing in the military
with regard to taking depositions.
To a great extent, the
equal treatment of both sides continues at the court-martial
itself--in non-capital cases.
In capital cases, however"
the defense may introduce deposition testimony if the conditions
for using depositions instead of liv e testimony are met. 20
For the purposes of Article 49, a case is non-capital
"whenever the convening authority directs that the case be
treated as not capital, ,,21 even though a capital sentence
could be imposed if there had been no such limitation.
By
the same token, a case is not capital when the death sentence
is authorized by the Code, but the maximum punishment prescribed by the Manual's Table of Maximum Punishments is less
than death. 22
Depositions, when admitted, are "read in evidence.,,23
Evidentiary objections may be made "in the same way they
would be made if the evidence was offered in the usual manner.,,24
It should be noted in passing that since the deposition testimony retains its character as evidence, and is not an exhibit,
it may not be examined by the members of the court, except
for the president of a special court who must rule on admissib iii ty. 25
Both the civilian and the military rules of evidence
allow depositions, originally taken as a precautionary device
in case the witness could not appear personally, to be used
by either the prosecution or the defense to impeach that
witness if he does give live .testimony. 26
The Court of Military Appeals has expressed the belief
that "Congress intended, in so far as reasonably possible,
to place military justice on the same plane as civilian
justice ... ,,27
Yet it should be clear from the above compari-
son of military and civilian rules of criminal procedure that
military justice is not on the same plane as civilian justice
in the eyes of Congress.
Why is it that in the area of
depositions, the requirements of military life have dictated
a
departure from the procedures followed in civilian courts?
The Court of Military Appeals has noted that:
the broad use of depositions against a defendant
in'-'cr iminal cases is peculiar to mil i tary law,
and that it arises justifiably from difficulties
in obtaining witnesses--which difficulties are
unique to law administration in the Armed Forces. 28
What types of difficulties, "unique to law administration in
the Armed Forces," are so grave as to cause it not to be
"reasonably possible" for the military courts to be under the
same rules as their civilian counterparts?
Probably, the
Court of Military Appeals in Drain, above, was merely stating
that the basic nature of military life is such that a
signifi~
cantly greater percentage of witnesses will be unavailable
at the time of trial than is true in civilian courts:
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 often considerable risk that a witness may
be dead before trial date, in which event,
were civilian rules to be followed, his
testimony would be 10st. 29
It will be noted later in this paper that the use of depositions when the deponent is a serviceman stationed elsewhere has been sharply limited.
For the present, however,
it will be assumed that the reasons stated above are sufficient
justification for Congress to determine that depositions should
be allowed to be used by either the prosecution or the defense
in military courts-martial.
But does the prosecution's use of depositions violate
the accused's Sixtb Amendment right of confrontation?
It was
noted at the outset of this paper that the Sixth Amendment
right of confrontation provides at least three important benefits for the criminal defendant.
We will now examine each of
those benefits, and will attempt to determine whether the
reasons cited above do in fact justify the denial of any or
all of the benefits granted to the accused by the Sixth
Amendment.
The first two benefits--the accused's right to crossexamine each witness against him, and the defendant's ri]ht
to be personally present when the witness is giving his
testimony--must be preserved at the taking of the deposition
or they will be denied.
The right of cross-examination is
generally regarded as one of the most important safeguards
provided an accused in the Constitution of the United states.
Dean Wigmore has stated in his treatise on evidence:
The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent
demands confrontation not for the idle purpose
of gazing upon the witness, or of being gazed
upon by him, but for the purpose of crossexamination, which cannot be had except by
the direct and personal putting of questions
and obtaining immediate answers ....
For two centuries past, the policy of the
Anglo-American system of Evidence has been to
regard the necessity of testing by crossexamination as a vital feature of the law.
The belief that BO statement (unless by special
exception) should be used as testimony until
it has been probed and sublimated by that test,
has found increasing strength in lengthening
experience ....
... If we omit political considerations of
broade~ range, then cross-examination, not
trial by jury, is the great and permanent
contribution of the Anglo-American system of
law to improved methods of trial procedure. 30
But the right to cross-examine witnesses is not the
.only benefit recognized in confrontation.
Another closely
related benefit is the criminal defendant's right to be
personally present when the witness is giving his testimony.
This right is based upon the rationale that a witness'
testimony is likely to be less damaging when he must personally
confront the accused:
... 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 person against whom their testimony is being
offered. Moreover, as the Uniform Code itself
recognize~3l the demeanor of a witness can be
all-important in the evaluation of his credibilitYi
yet it cannot be reflected in the cold pages of
a deposition. 32
Although almost 200 years has passed since legislation
was adopted permitting prosecution depositions to be used
before military courts-martial even though the accused persons
were not present when the depositions were taken, "there
appear to have been no federal cases which have specifically
determined the legality or constitutionality of such procedure.,,33
Nevertheless, there have been a number of decisions
by the Court of Military Appeals (as well as military Boards
of Review : and the Court of Military Review) on the problem.
One of the first cases to reach the Court of Military
Appeals was United states v. Clay, in which the court held:
A cursory inspection of the Uniform Code of
Military Justice ... discloses that Congress
granted to an accused the following rights
which parallel those accorded to defendants
in civilian courts: ... to be informed of the
charges against himi to be confronted by
witnesses testifying against himi to crossexamine witnesses for the governmenti ... 34
Chief Judge Robert E. Quinn, writing for the majority
in United states v. Voorhees, expressed similar sentiments
in 1954:
... every individual in the military service is
entitled to the same constitutional rights,
privileges, and guarantees as every other
American citizen, except where specifically
denied or limited by the Constitution itself ....
But there are differences between the civilian
and the military communit±es. 35
But are those "differences" substantial enough to deny
an accused his right of confrontation?
t~~Sixth_~endmept
Thother ~ woidS~ l does ~
apply to the Armed Forces?
The Court of
Military Appeals apparently believed that military courtsmartial were not required by the Constitution to provide the
accused with an opportunity to confront the witnesses against
him if Article 49 of the Code would allow depositions to be
used instead.
In United states v. Sutton1 6 a serviceman was
convicted on the basis of deposition evidence.
The accused
had been denied the right of confrontation, because he was
neither present at the time and place when the witness
answered the questions, nor had he waived his right to be
present.
The Navy Board of Review, relying on the Clay opinion,
reversed the trial court and held that the accused had been
denied the right of confrontation.
The Court of Military
Appeals reversed, holding that a deposition taken on written
interrogatories may be admitted in evidence notwithstanding
the fact that the accused was not present at the time toe
deposition was taken:
... when we enumerated confrontation of witnesses as one of the privileges accorded an accused
by Congress, we had to be considering it in
the light of any limitations set out in the
Code .... It seems crystal clear that Congress
had no intention of limiting the use of a
deposition to those cases where an accused
could be present at the time of the taking. 37
Chief Judge Quinn dissented, stating that the taking of the
deposition with neither the accused nor his counsel present
deprived the accused of his right of confrontation.
The
following year the Court again held that an accused is not
denied the right of confrontation by virtue of the fact that
the government is permitted to prove some of the essential
facts of the alleged offenses by the use of depositions taken
on written interrogatories without the actual presence of
either the accused or his counsel--and again Quinn dissented. 38
In 1957, however, a Board of Review decision indicated that
written interrogatories were not proper substitutes for live
testimony:
... an accused should normally be confronted
in court with the major prosecution witnesses.
It may be that circumstances render this
impracticable; however, requests in these
cases to be confronted by the witnesses should
be given most serious consideration.
If it is
impractical to subpoena the witnesses to appear
at the trial, it is difficult to understand why
an accused should be denied the right to an
oral taking of the deposition as a substitute.
Depositions in the form of interrogatories are
wholly unsatisfactory, as a means of obtaining
the testimony of vital witnesses in important
and difficult cases. 39
The Court of Military Appeals followed suit in the 1960 landmark case of United states v. Jacoby:
Cross-examination necessarily depends as much
upon the witness' answers to the questions put
by the proscution (sic) as it does upon the
interrogatories .... In short, cross-examination
is a two-edged sword and he who would serve
his client must be afforded the opportunity
personally to question the witness if this
great right is adequately to be preserved ....
~ .. Opportunity for the accused's presence
with counsel at the takin:J of depositions
substantially affords him the right , of confrontation guaranteed by the Sixth Amendment. 40
Although the court stopped short of prohibiting written
depositions altogether, it did place rather sharp limitations on their use.
Though written depositions are still
permissible, Jacoby seems to have changed their status to
not-yet-impermissible:
.•. it appears doubtful they will be used except
in unique situations..
It is suggested that
they not be used unless both counsel agree
that the expected testimony is to be fairly
routine, noncontested, capable of short (preferably "yes" and "no") answers, and that an
oral deposition would be clearly inconvenient
under the circumstances. 41
Three other cases
~nvolving
written interrogatories or depo-
sitions were decided by the Court of Military Appeals within
a few months of Jacoby.
All three were brief opinions that
announced a decision and cited Jacoby as authority.
In United
states v. Petterson42 the court said it was prejudicial error
to admit in evidence depositions taken upon written interrogatories where the defense counsel objected to such depositions both
2~
to the convening authority prior to trial and
to the law officer during the proceedingsf the court indicated in United states v. Lawrence 43 that it was error to admit
in evidence a deposition taken upon written interrogatories
over a defense obj ec ·tion that written interrogatories deny
the right of confrontation; and in United states v. Weinstein,
the court said:
WritEen depositions were read in evidence at
accused's trial by general court-martial over
defense objection that their use denied him
the right to confront the witnesses against
him. Such action constituted prejudicial
error. 44
The use of written interrogatories and depositions has apparently
been generally discontinued in the military, since the Court of
Military Appeals has not passed on a case involving them in ov er
ten years. 45
Not only did Jacoby sound the death knell for written
interrogatories:
it also indicated that the defendant has
a right to be present with his counsel at the taking of the
deposition:
The correct and constitutional construction of
the Article in question ~rt. 49J requires that
the accused be afforded the opportunity (although
he may choose knowingly to waive it thereafter)
to be present with his counsel at the taking of
written depositions. We so hold. 46
Thus, we have seen that at least two of the benefits
conferred on a defendant by the right of confrontation--the
right of cross-examination and the right of personal confrontation--can be preserved at the taking of the deposition IF
the accused and his counsel can be present and can crossexamine the deponent.
The defendant's third right inherent
in the right of confrontation--the right to have the trier of
fact "observe the- -, demeanor and behavior of the witness,,47cannot be preserved at all if deposition testimony is used;
this third benefit can only be met if the witness testifies
in person at the court-martial.
By providing that "the trial
counsel, the defense counsel, and the court-martial shall
have equal opportunity to obtain witnesses, ,,48 the Code
guarantees to the defendant his constitutional right to use
the power of the Government to obtain witnesses in his behalf.
The Code also provides that jurisdiction exists if the pro spective witness is on any land where the United states is
sovereign:
"Process ... to compel witnesses to appear and
testify ... shall run to any part of the United States, or the
Territories, Commonwealths, and possessions.,,49
A comparison
of the current Manual with its 1949 counterpart illustrates,
however, that a rather dramatic shift in opinions about depositions has occurred in the military.
The 1949 edition of
the Manual provided that "where a deposition would fully
answer the purpose and protect the rights of the parties,,,50
a subpoena for personal appearance would generally be unnecessary.
The current Manual, on the other hand, does not
even mention depositions in its subpoena paragraph as an
alternative means of presenting testimony.51
The official
comments to the new Manual indicates that the omission .was
deliberate:
... it is considered undesirable to emphasize
the use of depositions in view of the development of the law since 1951. Additionally, it
is the exception rather than the rule to use
depositions in trials today.52
Perhaps the best way to illustrate "the development of the
law since 1951" would be to make a brief examination of some
of the key military cases in the area.
The Court of Military Appeals originally placed the burden
upon the defense to prove that it really needed a witness, and
to show cause why a deposition would not suffice.
In the 1953
decision of United states v. DeAngelis, the court held that
the testimony of any witness requested by the defense must
be shown to be both material and necessary as a condition
precedent to the issuance of process to compel his attendance. 53
In United states v. Thornton 54 a second lieutenant was charged
with larceny of Government funds.
He claimed, however, that
he was acting under the proper authority of a superior officer
--and without any criminal intent.
his request to subpoena the
~ormer
The Government refused
commanding officers under
whose authority he claimed to have acted, and whose testimony
he felt would disprove the necessary element of intent.
The
Court of Military Appeals reversed, pointing out:
An accused cannot be forced to present the testimony of a material witness on his behalf by way
of stipulation or deposition. On the contrary,
he is entitled to have the witness testify
directly from the witness stand in the courtroom. To insure that right, Congress has
provided that he "shall have equal opportunity
(with the prosecution and court-martial) to
obtain witnesses ... in accordance with such
regulations as the President may prescribe ....
the President has directed that trial counsel
"will take timely and appropriate action" to
subpoena witnesses requested by the defense. 55
Responding to the prosecution's assertion in United states v.
Manos 56 that the Sixth Amendment right to have compulsory
process does not apply in trials by court-martial, the Court
of Military Appeals said:
We are ... concerned with impressing on all
concerned the undoubted right of the accused
to secure the attendance of witnesses in his
own behalf; the need for seriously considering
the request [for such witnesses]; and taking
necessary measures to comply therewith if
such can be done without manifest injury to
.
th e serVl.ce
... 57
In 1970 the Court of Military Appeals placed the use of depositions in perspective with the right to have the witnesses
present at trial:
While the use of depositions in courts-martial
is authorized by Article 49 ... if certain prerequisites are satisfied, this codal provision
does not conflict with the right to compulsory
process as depositions are an exception to the
general rule of live testimony and are to be
used only when the Government cannot reasonably
have the witness present at trial. 58
The Court of Military Review went even further in United states
v. staton,59 holding that the accused is entitled to the
personal appearance of a material witness, and that he cannot
be required to present the testimony by way of stipulation or
deposition where the evidence would go directly to the core of
the defense.
The defense apparently has a rather large core,
however, since the Court of Military Review decided this year
that the accused in United states v. Howard was erroneously denied
his right of confrontation and cross-examination of an essential
witness against his interests where the military judge denied
the accused s express request that
I
a ~ ' chemist
who had prepared
a laboratory report identifying a certain sUbstance as marijuana be produced as a witness for cross-examination concerning the laboratory procedures and methods employed in
evaluating the suspected substance!60
It was noted in the Davis case, above, that although
depositions were authorized by Article 49 of the Code, they
"are to be used only when the Government cannot reasonably
have the witness present at trial.,,61
able?"
But what is "reason-
If it is merely inconvenient for the witness to appear,
would that be a reasonable ground for substituting depositions?
Specifically, is Article 49(d) (1) reasonable when it provides
that depositions may be used if:
... the witness resides or is beyond the state,
Territory, Commonwealth, or District of Columbia
in which the court, commission, or board is
ordered to sit, or beyond 100 miles from the place
of trial or hearing. 62
Although this provision in effect emasculates the nationwide
service of process granted in Article 46 (although service
of a subpoena may still be made, a deposition may be used
instead if the witness is presently beyond a 100-mile radius,
or is beyond a state line regardless of ' distance) , the verdict
of the military courts initially was that the provision was
reasonable.
It was held in United States v. Chapman 63 that
Article 49(d) (1) "clearly establishes" two separate and
distinct qualifications, each standing alone and apart from
the other.
Accordingly, the deposition of a witness residing
outside the state of the trial--but only 35 miles from the
place of the trial--was held to be properly admitted in evidence.
At a court-martial in France at about the same time, the
prosecution offered a deposition by a French witness who, as
a French National, was not amenable to United States courtmartial process.
The defense counsel objected to admission
of the deposition on the ground that the witness resided within
100 miles of the place of trial and no showing had been made
that the witness would not or could not respond and appear.
The Court of Military Review affirmed the use of the deposition 64
--but was reversed by the Court of Military Appeals, which
held that since the court-martial was sitting in France and
since the witness residedw±thin 100 miles of the place of
trial, Article 49(d) (1) was inapplicable:
The words "State,
Territory, or District" referred to geographic areas within
the United states and its possessions.
The prosecution then
attempted to justify the use of the deposition under Article
49(d) (2) on the ground that the witness was not amenable to
process.
The court agreed that the witness was not amenable,
but held that in order for Article 49(d) (2) to come into
effect, there must be shown an inability, or a refusal, to
to testify .... and that had not been shown in Stringer. 6S
In the 1956 case of United states v. Dyche~6 the Court of
Military Review said that in determining whether a witness
is beyond 100 miles
~rom
the place of trial, the distance is
not to be determined by measuring in a mathematically straight
line, but rather by using the shortest ordinary route of
public travel.
Again, the Court of Military Appeals struck
down the prosecution's use of the deposition without ruling
on the constitutionality of the "100 mile rule."
The court
held that the deposition was inadmissible because the Government failed to show that the deponent was actually unavailable as a witness.
Although it was shown that the deposition
was taken in Chicago just two days before the trial, the court
said that:
There is no more reason to presume that the
deponent was in Chicago at the time of trial
than there is to presume that he was in Springfield ~r in Bloomington, which was his residence. Accordingly, we conclude that the
deposition was inadmissible because of the
failure to show the deponent's unavailability.67
By 1970, however, the military courts were beginning
to strike down the use of depositions even where the witness
was far beyond the limitations expressed in Article 49.
In
United states v. Chatmon 68 a Court of Military Review held
that although both the accused and his counsel were present
when a witness' deposition was taken, and although the witness
was more than 100 miles from the place of trial at the time
of trial, it was error to permit the use of his deposition
where--notwithstanding the importance of his testimony--the
witness had been transferred by military orders and he could
have been returned to testify:
The Constitutional right of confrontation and
cross-examination to the extent guaranteed by
the Sixth and Fourteenth Amendments cannot be
side-stepped because it happens to be inconvenient for one of the parties. 69
The Court of Military Appeals agreed with the above rationale
when, in United States v. Davis,70 the court held that the
Article's lOa-mile limitation did not deprive the accused of
his right to live testimony when the witness was a serviceman
stationed elsewhere in the United States; such a witness "was
always within the jurisdiction of a military court" and was
not "unavailable," since the Government could (in the absence
of unusual or special conditions) arrange for him to be
excused from regular military duties and be transported to
the place of trial to give his testimony.71
Likewise, in
United States v. Troutman 72 the Court of Military Appeals held
it was error to permit the introduction of depositions where
the witnesses were still on active duty with the Army--unless
actual unavailability could be shown.
Although the military
courts have not yet held that the "100 mile" and "state line"
clauses are unconstitutional, they have largely voided the
effect of the clauses.
Although depositions are still allowed by both the
Code and the Manual, and although they are still in use in
the military, it has been demonstrated that the Court of
Military Appeals has severely limited their use.
Further-
more, it clearly appears that the military courts are moving
steadily toward the often-stated objective of guaranteeing-insofar as is possible--the same rights to an accused in
military courts as he would enjoy in civil courts with
respect to his right of confrontation under the Sixth
Amendment.
FOOTNOTES
1 U.S. Const., amend. VI.
2 156 US 237, 39 LEd 409, 15 SCt 337 (1895).
3 Id . at 243-244.
4MCM , 1969 (Rev.):
"a deposition is the testimony of
a witness in response to questions submitted by the party
desiring the deposition and by the opposite party, which is
reduced to writing and taken under oath before a person
empowered to administer oaths. Depositions normally a~e
taken to preserve the testimony of witnesses whose availability at the time of the trial appears uncertain. See
30f and 34d. Written interrogatories are questions, prepared by the prosecution or defense or bo£h, which are
reduced to writing before submission to a witness whose testimony is to be taken by deposition. The answers, reduced to
writing and properly sworn to, constitute the deposition
testimony of the witness. Under Article 49(a), a deposition
taken on oral examination constitutes an oral deposition,
and a deposition taken on written interrogatories constitutes
a written deposition." The above quotation is from para.117a.
5Motes v. United States, 178 US 458 at 474, 44 LEd 1150,
20 sct 993 (1900).
6Fed . R. Crim. P. 15.
7 Arts. of War,
1786, Art. 10, cited in Winthrop, Military
Law and Precedents, 2d Ed., 973.
8 Arts . of War, 1806, Art. 74, cited in Winthrop, ide , 983.
9Arts. of War, 1874, Art. 91, cited in Winthrop, id. , 993.
10UCMJ art. 49, 10 U.S.C. El 849 (1975) .
='
ll UCMJ , art. 49 (a) provides that "any party may take
oral or written depositions."
12UCMJ , art 49(a), 10 U.S.C. § 849(a) (1975); United
States V. Clay, 1 USCMA 74, 77, 1 CMR 74, 77 (1951).
" 13MCM , 1969 (Rev.), para. 117 b(l).
14Fed . R. Crim. P. 15.
15 44 Compo Gen. 749 (1965).
16Fed . R. Crim. P. 15(e).
17 UCMJ , art. 49(d) (1), 10 U.S.C.
§
849(d) (1) (1975).
18UCMJ , art. 49(d) (3), 10 U.S.C. § 849(d) (3)(1975).
19UCMJ , art. 49(d) (2), 10 U.S.C. § 849(d) (2) (1975).
20UCMJ , art. 49(d)and(e), 10 U.S.C. § 849(d)and(e) (1975).
21UCMJ , art. 49(f), 10 U.S.C. § 849(f) (1975).
22UCMJ , art. 56, 10 U.S.C. § 856 (1975) ~ MCM, 1969 (Rev.),
para. 145a.
23UCMJ , art. 49(d), 10 U.S.C. § 849(d) (1975).
24MCM , 1969 (Rev.), para. 145a.
25united states v. Jakaitis, 25 CMR 724 (1957); MCM, 1969
(Rev.), para. 145a.
. . P. 15 ( e) ; MCM, 1969 (
26 F e d . R. Cr ~m
Re v)
. , par a . 145 a .
27United states v. Clay, supra at 77.
28united states v. Drain, 4 USCMA 646, 16 CMR 220, 222
(1954).
29Everett, Military Justice in the Armed Forces of the
United states 221-22, cited in Read, Depositions in Military
Law, 26 JAG J. 181, 184 (1972).
30wigmore, Evidence §§ ~ 1~95, 1367 (3d Ed., 1940).
31UCMJ , art. 66(c), 10 U.S.C. § 866(c) (1975).
32Everett, The Role of the Deposition in Military Justice,
Mil. L. Rev. 131 at 132-33 (Jan. 1960).
33Munster and Larkin, Military Evidence 255 (1959).
34 1 USCMA 74 at 77, 1 CMR 74 at 77.
354 USCMA 509, 16 CMR 83 at 105 (1954).
36united states v. sutton, 3 USCMA 337, 11 CMR 220 (1953) .
37 11 CMR at 223, 224-25.
38united States v. Parrish, 7 USCMA 337, 22 CMR 127 (1956).
39United states v. Turman, NCM 56-01270 (SF), 25 CMR
710 (1957).
40united States v. Jacoby, 11 USCMA 428, 29 CMR 244 at
248, 249 (1960).
41 Read, supra note 29, at 187.
z sr
42united states v. Petterson, 11 USCMA 502, 29 CMR 318
(1960) .
43united states v. Lawrence, 11 USCMA 504, 29 CMR 320
(1960) .
44United states v. Weinstein, 11 USCMA 599, 29 CMR 415
at 416 (1960).
45
Read, supra note 29, at 188.
46 29 CMR at 249.
47united States v. Griffin, 17 USCMA 387, 388, 38 CMR
185, 186 (1968).
48UCMJ , art. 46, 10 U.S.C.
49 Id .
§
846 (1975).
See also MCM, 1969 (Rev.), para. 115a.
50MCM , 1949, para. 124.
5 lMCM , 1969 (Rev.), para. 115.
52Analysis of Contents, MCM, 1969 ¢h. XXIII.
53united States v. DeAngelis, 3 USCMA 298, 12 CMR 54 (1953).
54
8 USCMA 446, 24 CMR 256 (1957).
55 Id . at 449, 24 CMR at 259.
56 17 USCMA 10, 37 CMR 274 (1967).
57 Id . at 10, 37 CMR at 279
58united sta~es v. Davis, 19 USCMA 217 at 220, 41 CMR
217 at 220 (1970).
59 CM 429883, 48 CMR 250 (1974).
60 SPCM ·10643, 50 CMR 797 (1975).
61united States v. Davis, supra note 58.
62
UCMJ, art 49(d) (1), 10 U.S.C. § 849(d) (1) (1975).
63united states v. Chapman, NCM 231, 11 CMR 639 (1953) .
64united states v. .Stringer, CM 364834, .12 CMR 460 (1953) .
65
United states v. Stringer, 5 USCMA 122, 17 CMR 122
(1954).
66united States v. Dyche, ACM 12845, 23 CMR 723 (1956).
67united States v. Dyche, 8 USCMA 430, 24 CMR 240 (1957).
Note: The Court of Military Appeals affirmed the holding of the
Board of Review, although it found that the deposition was inadmissible
30
68united states v. Chatmon, NCM 69-3178, 41 CMR S07
(1970) .
69
Id. at SlO, where the Court of Military Review quoted
and adopted the language of the federal Circuit Court of
Appeals in Holman v. Washington, 364 F2d 61S at 623 (1966).
70united States v. Davis, supra note 5S.
71 Id . at 223, 41 CMR at 223. See also United states
v. Hodge, NCMR 70-1099, where the Navy Court of Military
Review held that Davis applied to civilians as well as to
persons serving in the Armed Forces--notwithstanding any
contrary implications in Article 49(d) (1). The court also
said that witnesses not subject to the process of the courtmartial must be shown to be unwilling to appear voluntarily
before their deposition could be used. This latter point
was reiterated in United States v. Staton, supra note 59,
which noted that although the witnesses requested by the
defense were in a foreign country and were not amenable to
process, the defense counsel's statement that they were
prepared to testify amounted to an affirmativ e statement
that they were willing to appear.
72United States v. Troutman, CM 4201S9, 42 CMR 419
(1970) .
ADDENDUM:
The preceding article discussed the prosecution's use
of depositions in military courts-martial, and compared the
military rules with their civilian counterparts in federal
courts prior to August 1, 1975, when the proposed amendments
to the Federal Rules of Criminal Procedure became effective.
Rule l5(a) has been amended to allow the prosecution (as
well as the defense) to take depositions:
Whenever due to special circumstances of the case it
is in the interest of justice that the testimony of
a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of
such party and notice to the parties order that
testimony of such witness be taken by deposition
and that any designated book, paper, document,
record, recording, or other material not pri v ileged,
be produced at the same time and place.
The phrase "whenever due to special circumstances of the case it
is in the interest of justice" is, according to the Advisory
Committee's notes, "intended to make clear that the decision by
the court as to whether to order the taking of a deposition shall
be made in the context of the circumstances of the particular case.
The principal objective is the preservation of evidence for use at
trial.
It is not to provide a method of pretrial discovery nor
primarily for the purpose of obtaining a basis for later crossexamination of an adverse witness."
It should also be noted that
only the "testimony of a prospective witness of a party" (Le.,
a party's own witness, as distinguished from an adverse witness)
can be taken.
When Congress broadened Rule 15 to allow the government to
take depositions, Congress also restricted the manner in which
depositions may be taken in criminal cases.
Whereas the old Rule
15(d) merely provided that "A deposition shall be taken in the
manner provided in civil actions," the amended version reads:
Subject to such additional conditions as the court
shall provide, a deposition shall be taken and filed
in the manner provided in civil actions except as
otherwise provided in these rules, provided that (1)
in no event shall a deposition be taken of a party
defendant without his consent, and (2) the scope and
manner of examination and cross-examination shall be
such as would be allowed in the trial itself. The
government shall make available to the defendant or
his counsel for examination and use at the taking of
the deposition any statement of the witness being
deposed which is in the possession of the government
and to which the defendant would be entitled at the
trial.
Prior to August 1, 1975, Rule 15(d) authorized courts to direct
that a deposition be taken on written interrogatories in the manner
provided in civil actions--if the court had been requested to do
so by a defendant.
Rule 15(d), which still specifies how depo-
sitions are to be taken, no longer even mentions written interrogatories, although Rule 15(h) provides:
Nothing in this rule shall preclude the taking of a
deposition, orally or upon written questions, or the
use of a deposition, by agreement of the parties with
the consent of the court.
The Advisory Committee's notes also indicate that Congress intended
to restrict the manner in which depositions may be taken in criminal
cases under the amended rules:
In subdivision (d) the language "except as otherwise
provided in these rules" is meant to make clear that
the subpoena provisions of rule 17 control rather
than the provisions of the civil rules.
The use of the phrase "and manner" in subdivision
(d) (2) is intended to emphasize that the authorization
is not to conduct an adverse examination of an opposing
witness.
Subdivision (c) was amended to provide that "Whenever a deposition is taken at the instance of the government, .... the court
may direct that the expenses of travel and subsistence of the
defendant and his attorney for attendance at the examination shall
be paid by the government."
Rule 15 was also modified by adopting the "unavailability"
definition of the Rules of Evidence for the United states Courts
and Magistrates, 804 (a)
(Nov. 1971):
"Unavailable" as a witness includes situations in which
the deponent:
(1) is exempted by ruling of the judge on the:3"round
of privilege from testifying concerning the subject
matter of hisdepositioni or
(2) persists in refusing to testify concerning the
subject matter of his deposition despite an order of
the judge to do SOi or
(3) testifies to a lack of memory of the subject
matter of his depositioni or
(4) is unable to be present or to testify at the
hearing because of death or then existing physical or
mental illness or infirmitYi or
(5) is absent from the hearing and the proponent of
his deposition has been unable to procure his attendance
...
.
by process or other re'asonable means. A deponent 1S
not unavailable as a witness if his exemption, refusal,
claim of lack of memory, inability, or absence is due
to the procurement or wrongdoing of the proponent of
his deposition for the purpose of preventin:3" the witness
from attending or testifying.