Exclusion of video-tape deposition under Crawford.

This case could be very helpful to an accused overseas where the prosecution lets witnesses go PCS or off active duty prior to trial, with the idea that the deposition or Article 32, UCMJ, hearing testimony could be used. Note, this case doesn’t talk about MLAT’s.

The government’s minimal efforts to contact an “unavailable” witness in Mexico on the eve of trial were not reasonable nor in good faith; the playing of the witness’s video deposition at trial violated the Confrontation Clause; because the error was not harmless beyond a reasonable doubt, the conviction was reversed, in United States v. Tirado-Tirado, _ F.3d _ (5th Cir. March 19, 2009) (No. 07-50670).

While it didn’t work in this case, the appellant also sought to argue that, “he was denied a full and fair opportunity to cross examine Garay-Ramirez during the video deposition about new information . . .” This must be a consideration, especially if the depositions or Article 32, UCMJ, hearing have been months before trial, you have had the usual failure of the prosecution to comply with the Production requirements of R.C.M. 405(f)(9)(10)(11)(12) [n.1] at the Article 32, and you have a lot more information and discovery.

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n.1. R.C.M. 405(f)(10) is particularly relevant because it is arguably broader than R.C.M. 701:

Have evidence, including documents or physical evidence, within the control of military authorities produced as provided under subsection (g) of this rule;

This means all of the investigative ROI, medical reports and records, and it is not limited to the spurious concept, so often advanced as “open discovery,” of what’s in the TC file. If you have filed your R.C.M. 405 Production Request timely, there should be little excuse for non-compliance with R.C.M. 405.