DEPOSITIONS

A deposition may be ordered whenever, after preferral of charges, due to exceptional circumstances of the case, it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at an Article 32 investigation or a court-martial. A CA who has the charges for disposition or, after referral, the CA or the military judge may order that a deposition be taken on request of a party.

A deposition is the out-of-court testimony of a witness under oath in response to questions by the parties that is reduced to writing or recorded on videotape or audiotape or similar material. A deposition taken on oral examination is an oral deposition, and a deposition taken on written interrogatories is a written deposition. Written interrogatories are questions, prepared by the prosecution, defense, or both, that 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. A deposition may be taken by agreement of the parties without necessity of an order.

A deposition may be taken to preserve the testimony of a witness who is likely to be unavailable at the investigation or at the time of trial. Part or all of a deposition may be used on the merits or on an interlocutory question as substantive evidence if the witness is unavailable. A deposition may be admitted in a capital case only upon offer by the defense. In any case, a deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require the proponent to offer all that is relevant to the part offered, and any party may offer other parts.

A deposition that is transcribed is ordinarily read to the court-martial by the party offering it. The transcript of a deposition may not be inspected by the members. Objections may be made to testimony in a written deposition in the same way that they would be if the testimony were offered through the personal appearance of a witness.

TYPES OF DEPOSITIONS

There are two types of depositions-written and oral. A written deposition consists of a document that sets forth a series of written questions prepared by counsel. These are called interrogatories and cross-interrogatories. The other part of the document consists of the answers of the deponent (the person who testifies) that were given orally in the presence of the deposition officer and sworn to.

A written deposition may be used against an accused only when the accused is present at the taking of the deposition or when the accused expressly waives his or her right to be present. The Interrogatories and Deposition, DD Form 456 (fig. 3-5), illustrates a completed written deposition.

An oral deposition consists of a document that sets forth questions asked personally of the deponent by counsel and the deponent's answers. This questions and answers session is accomplished in the presence of the deposition officer, counsel for the accused and the government, the accused, and a reporter.

Figure 3-5.-Interrogatories and Deposition, DD Form 456 (page 1 of 6).

Figure 3-5.-Interrogatories and Deposition, DD Form 456 (page 2 of 6).

Figure 3-5.-Interrogatories and Deposition, DD Form 456 (page 3 of 6).

Figure 3-5.-Interrogatories and Deposition, DD Form 456 (page 4 of 6).

Figure 3-5.-Interrogatories and Deposition, DD Form 456 (page 5 of 6).

Figure 3-5.-Interrogatories and Deposition, DD Form 456 (page 6 of 6).