A deposition is “out-of-court testimony of a witness under oath in response to questions by the parties,” which is reduced to writing or videotape to be used later in either an Article 32 hearing or during a court-martial. Rules for Courts-Martial (R.C.M.) 702. Depositions are rarely conducted and used in courts-martial. Depositions are ordered by either the convening authority or a military judge (post referral). The reason a convening authority or a military judge might order a deposition to be conducted is to preserve testimony from a witness who they have good reason to believe will not be available for the Article 32 investigation or court-martial. In a deposition, both the prosecution and defense should fully question the witness, because this may be the only opportunity to do so. The written version or videotape version of the deposition may then be admitted at the hearing or court-martial as a substitute for the witness appearing in front of the investigating officer, military judge or panel. In U.S. v. McDowell, an Air Force military judge ordered a deposition of an alleged sexual assault victim and the military judge’s order was upheld in the spring of 2014 by appellate courts despite challenges from the government. The reason the deposition was ordered by the military judge in this case was because the alleged victim testified fully for the government at the Article 32 investigation, but then left the hearing before the defense was finished with the cross-examination of the alleged victim. The alleged victim in this case was a civilian and therefore, could not be ordered to attend or participate in the Article 32 hearing. However, because she chose to participate in the Article 32 hearing fully for the government, but only partially for the defense, the military judge ordered that a complete deposition be taken of the alleged victim so that it could be used fairly at a new Article 32 hearing. Both the Air Force Court of Criminal Appeals (AFCCA) and the Court of Appeals for the Armed Forces (CAAF) upheld the military judge’s decision to order the deposition in the interests of justice. I have a lot of experience with depositions, Article 32 hearings, courts-martial and appeals. Each one of these forums is different and requires a unique approach. If you or your loved one is facing an Article 32 hearing, deposition, court-martial, court-martial appeal or any other military adverse action you need someone with experience. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.
