Depositions

(a) In general. (1) A deposition may be ordered at the request of any party if the requesting party demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at trial. (2) “Exceptional circumstances” under this rule includes circumstances under which the deponent is likely to be unavailable to testify at the time of trial. (3) A victim’s declination to testify at a preliminary hearing or a victim’s declination to submit to pretrial interviews shall not, by themselves, be considered “exceptional circumstances” under this rule. (4) A request for a written deposition may not be approved without the consent of the opposing party except when the deposition is ordered solely in lieu of producing a witness for sentencing under R.C.M. 1001 and the authority ordering the deposition determines that the interests of the parties and the court-martial can be adequately served by a written deposition. (5) A request for an oral deposition may be approved without the consent of the opposing party. (b) Who may order. A convening authority who has the charges for disposition or, after referral, the convening authority or the military judge may order that a deposition be taken on request of a party. (c) Request to take deposition. A party requesting a deposition shall do so in writing, and shall include in such written request— (1) The name and contact information of the person whose deposition is requested, or, if the name of the person is unknown, a description of the office or position of the person; (2) A statement of the matters on which the person is to be examined; (3) A statement of the reasons for needing to preserve the testimony of the prospective witness; and (4) Whether an oral or written deposition is requested. (d) Action on request. (1) Prompt notification. The authority under subsection (b) who acts on a request for deposition shall promptly inform the requesting party of the action on the request and, if the request is denied, the reasons for denial. (2) Action when request is denied. If a request for deposition is denied by the convening authority, the requesting party may seek review of the decision by the military judge after referral. (3) Action when request is approved. (A) Detail of deposition officer. When a request for a deposition is approved, the convening authority shall detail a judge advocate certified under Article 27(b) to serve as deposition officer. In exceptional circumstances, when the appointment of a judge advocate as deposition officer is not practicable, the convening authority may detail an impartial commissioned officer or appropriate civil officer authorized to administer oaths, other than the accuser, to serve as deposition officer. If the deposition officer is not a judge advocate certified under Article 27(b), an impartial judge advocate so certified shall be made available to provide legal advice to the deposition officer. (B) Assignment of counsel. If charges have not yet been referred to a court-martial when a request to take a deposition is approved, the convening authority shall ensure that counsel qualified as required under R.C.M. 502(d) are assigned to represent each party. (C) Instructions. The convening authority may give instructions not inconsistent with this rule to the deposition officer. (D) Notice to other parties. The requesting party shall give to every other party reasonable written notice of the time and place for the deposition and the name and address of each person to be examined. On motion of a party upon whom the notice is served, the deposition officer may for cause shown extend or shorten the time or change the place for taking the deposition, consistent with any instructions from the convening authority. (e) Duties of the deposition officer. In accordance with this rule, and subject to any instructions under subparagraph (d)(3)(C), the deposition officer shall— (1) Arrange a time and place for taking the deposition and, in the case of an oral deposition, notify the party who requested the deposition accordingly; (2) Arrange for the presence of any witness whose deposition is to be taken in accordance with the procedures for production of witnesses and evidence under R.C.M. 703; (3) Maintain order during the deposition and protect annoyance, and witnesses from the parties embarrassment, or oppression; (4) Administer the oath to each witness, the reporter, and interpreter, if any; (5) In the case of a written deposition, ask the questions submitted by counsel to the witness; (6) Cause the proceedings to be recorded so that a verbatim transcript may be prepared; (7) Record, but not rule upon, objections or motions and the testimony to which they relate; (8) Certify the record of the deposition and forward it to the authority who ordered the deposition; and (9) Report to the convening authority any substantial irregularity in the proceeding. (f) Rights of accused. (1) Oral depositions. (A) At an oral deposition, the accused shall have the following rights: (i) Except as provided in subparagraph (B), the right to be present. (ii) The right to be represented by counsel as provided in R.C.M. 506. (B) At an oral deposition, the accused shall not have the right to be present when— (i) the accused, absent good cause shown, fails to appear after notice of time and place of the deposition; (ii) the accused is disruptive within the meaning of R.C.M. 804(c)(2); or (iii) the deposition is ordered in lieu of production of a witness on sentencing under R.C.M. 1001 and the authority ordering the deposition determines that the interests of the parties and the court-martial can be served adequately by an oral deposition without the presence of the accused. (2) Written depositions. The accused shall have the right to be represented by counsel as provided in R.C.M. 506 for the purpose of taking a written deposition, except when the deposition is taken for use at a summary court-martial unless otherwise provided by the Secretary concerned. II-43 (g) Procedure. (1) Oral depositions. (A) Examination of witnesses. Each witness giving an oral deposition shall be examined under oath. 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 each accused for examination and use at the taking of the deposition any statement of the witness which is in the possession of the United States and to which the accused would be entitled at the trial. (B) How recorded. In the discretion of the authority who ordered the deposition, a deposition may be recorded by a reporter or by other means including video and audio recording. (2) Written depositions. (A) Presence of parties. No party has a right to be present at a written deposition. (B) Submission of interrogatories to opponent. The party requesting a written deposition shall submit to opposing counsel a list of written questions to be asked of the witness. Opposing counsel may examine the questions and shall be allowed a reasonable time to prepare cross-interrogatories and objections, if any. (C) Examination of witnesses. The deposition officer shall swear the witness, read each question presented by the parties to the witness, and record each response. The testimony of the witness shall be recorded on videotape, audiotape, or similar material or shall be transcribed. When the testimony is the deposition shall, except when transcribed, impracticable, be submitted the witness for to examination. The deposition officer may enter additional matters then stated by the witness under oath. The deposition shall be signed by the witness if the witness is available. If the deposition is not signed by the witness, the deposition officer shall record the reason. The certificate of authentication shall then be executed. (h) Objections. (1) In general. A failure to object prior to the deposition to the taking of the deposition on grounds which may be corrected if the objection is made prior to the deposition forfeits such objection unless the objection is affirmatively waived. (2) Oral depositions. Objections to questions, testimony, or evidence at an oral deposition and the grounds for such objection shall be stated at the time of taking such deposition. If an objection relates to a II-44 matter which could have been corrected if the objection had been made during the deposition, the objection is forfeited if not made at the deposition. (3) Written depositions. Objections to any question in written interrogatories shall be served on the party who proposed the question before the interrogatories are sent to the deposition officer or the objection is forfeited. Objections to answers in a written deposition may be made at trial. (i) Admissibility and use as evidence. (1) In general. (A) The ordering of a deposition under paragraph (a)(1) does not control the admissibility of the deposition at court-martial. Except as provided in paragraph (2), a party may use all or part of a deposition as provided by the rules of evidence. (B) In the discretion of the military judge, audio or video recorded depositions may be played for the court-martial or may be transcribed and read to the court-martial. (2) Capital cases. Testimony by deposition may be presented in capital cases only by the defense. (j) Deposition by agreement not precluded. (1) Taking deposition. Nothing in this rule shall preclude the taking of a deposition without cost to the United States, orally or upon written questions, by agreement of the parties. (2) Use of deposition. Subject to Article 49, nothing in this rule shall preclude the use of a deposition at the court-martial by agreement of the parties unless the military judge forbids its use for good cause.