Article 32’s and depositions.

Criminal lawyers can’t learn from civil practice lawyers and vice-versa?

Let’s think of an Article 32, UCMJ, hearing as a deposition. In most cases it has the effect of a deposition in terms of fodder for cross-examination, direct, or preparation at trial (except for Air Force cases). [1] Also, in certain circumstances the Article 32, UCMJ, transcript takes the place of a deposition when a witness is not available for trial (except for Air Force cases). See United States v. Cabrera-Frattini, 65 M.J. 241 (C.A.A.F. 2007) , but see United States v. Scheurer, 62 M.J. 100 (C.A.A.F. 2005). So, we can perhaps learn from how civil practice lawyers go about doing depositions?

Evan Schaeffer has The Trial Practice Tips Weblog.

On 29 January 2009, he posted part 1 of 3 parts on 15 way to deposition. On 5 February 2009, he posted part 2 of 3 parts. You should read the items for they have value in approaching an Article 32, UCMJ, hearing. I’m looking forward to part 3 of 3. A couple of points that caught my particular attention:

1. Deposing someone who doesn’t need to be deposed at all.

This can be important because the testimony can be admitted at trial if the witness is not available (except for Air Force cases). If this is a prosecution witness then why help them preserve testimony.

2. Failing to investigate the witness online.

I cannot remember how many times I’ve found useful information about a potential government witness on-line. Many have MySpace websites, or are on one or the other of a social network site, you can get other types of information on-line, sometimes for a small fee.

8. Failing to listen to the witness’s answers.

I usually talk about this point for trial as well. I know some lawyers find it easy or necessary to write-out their questions in advance. The lawyer then reads and follows the prepared questions like a check-list. This can be fatal to an effective direct or cross-examination. Not only must you listen to the answer, you should have situational awareness. By situational awareness I’m mean keeping track of how the members are reacting, how the judge is reacting, how the witness is reacting. An answer or situational feedback may cause you to follow a new or additional thread, change your manner, or stop asking questions.

Mr. Schaeffer has various points where he expands on his advice. For example, “What to Ask in Every Deposition.”

• How the witness prepared for the deposition; [this is also useful in trial.]
• Statements by your client that the witness heard;
• The identity of other witnesses;
• Statements made by other witnesses;
• The witness’s relationship to other witnesses in the case;
• Convictions;
• Conversations about the incident or hearing or case;
• Admissions, i.e., testimony that will bolster your case.

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[1.] The Air Force tries to be cute about Article 32, UCMJ, hearings — they aren’t recorded. They don’t want the defense to have ammunition for trial later. Also, their trial counsel prep the witness to say, “but that’s only a summary,” if there’s a cross-examination challenge to what might have been said at the Article 32, UCMJ, hearing. You don’t have a transcript. What the Air Force does is have the hearing officer conduct an ex-parte interview with each witness who has testified and then have them sign “summary” of their in-hearing testimony. This is in itself an objectionable practice. Wouldn’t be the first time the witness or IO has changed such a summary. This is all done off-the-record and ex-parte. One of these days that should come back to haunt when a witness isn’t available at trial and they want to use the Article 32, UCMJ, testimony. It ain’t properly a deposition. You need a verbatim transcript or at least the audio-tapes.