Testimony Must Be Material

Even though the proposed deponents may have been unavailable at trial, courts have routinely denied Rule 15 deposition requests if the proposed witness testimony was not material. Dr. Lorandos notes that neither the Rule nor the Advisory Committee’s note defines materiality, and courts have assessed this prong of the “exceptional circumstances” test in a variety of ways, asking, for example, whether the testimony is essential or critical to the defense, exculpatory, or capable of negating an element of the government’s case, or instead is cumulative or merely corroborative.

 Generally, in the Rule 15 context, “materiality has the same meaning the Supreme Court gave the term in Brady v. Maryland... and its progeny, namely, that the evidence or testimony must be exculpatory, and not corroborative or cumulative of other evidence.”[1] One court has set forth the materiality analysis as follows:

“Determining whether forecasted testimony is exculpatory involves three steps: first, identifying the elements of the crime; second, outlining the forecasted testimony; and third, comparing ‘the elements and the forecasted testimony to ascertain whether the forecasted testimony negates any element of the charged crime or establishes a defense.’ Then, if a prospective deponent’s forecasted testimony would be exculpatory, it is necessary to consider ‘whether it is cumulative of other existing and available evidence.”[2]

 “The testimony is material if it is ‘highly relevant to a central issue in the case’...”[3] The principal consideration guiding whether the absence of a particular witness’s testimony would produce injustice is the materiality of that testimony to the case.[4] Moreover, there is typically some showing, beyond ‘unsubstantiated speculation,’ that the evidence exculpates the defendant.” “But the Rule imposes no requirement that the defendant show the expected testimony will surely acquit him.[5] Nor may the Government “put itself in the shoes of defense counsel in attempting to predict ... what may be material...”.[6] “[Materiality] requires a reasoned basis for expecting that the testimony may exonerate him.”

Defense counsel may be unable to establish a witness’s materiality early on, and must weigh the need to make a timely request with the requirement of establishing the materiality of the witness. However, counsel may be able to argue that the defendant should not be required to make the same showing of materiality of a witness or witnesses because of the defendant’s inability to gain access to the proposed witnesses, to avoid denying important evidence to the defendant.[7]

Some courts may consider that the proffered testimony of the witness is cumulative and merely corroborative of testimony that defendant himself is able to offer, and hence not material.[8] In United States v. Hajbeh,[9] the defense argued that preventing a Rule 15 deposition would violate the defendant’s Fifth Amendment right.[10] The Court ruled, “[w]hile the denial of defendant’s Rule 15(a) motion may certainly serve to encourage defendant to testify, he remains free to choose not to do so.” Therefore, Dr. Lorandos believes that the defendant is not, in any relevant sense, “compelled” to testify because his “free will [is not] overborne.”

 Countervailing Factors

Courts will sometimes weigh any countervailing factors against authorizing the deposition.[11] One such factor is how confident a court must be before authorizing a deposition that the prospective deponent will actually testify along the lines forecasted by the party seeking the deposition.[12] There must be some credible, reliable basis to believe that a witness will testify as forecasted before a Rule 15 deposition can be authorized.[13] On the other hand, some courts have held that the fact that “success is not a foregone conclusion does not overwhelm the exceptional circumstances that justify permitting the deposition.”[14] That, in order “in order to resolve a motion under Rule 15, courts need only look to the witness’ unavailability ‘for trial’ and not to whether they have actually consented to make themselves available for the deposition.”[15]

Dr. Lorandos believes that another factor that may weigh against a court authorizing a deposition is likelihood that the prospective deponent may invoke his privilege against self-incrimination and refuse to testify.[16] On such occasions, courts have construed motions to take a Rule 15 depositions as including a lesser request issuing a letter rogatory requesting the government officials of a foreign nation to examine a witness by written interrogatories regarding the witness’s willingness to waive his or her Fifth Amendment rights and answer questions fully in a later deposition.[17] Where a witness is examined on the basis of such written interrogatories, counsel for the parties need not be present.

Countervailing factors also include the “fact finder’s inability to observe the demeanor of the deposition witnesses,[18] whether the laws where the deposition will be held restrict cross-examination of the witness or even, if the witnesses are placed under oath, whether the significance of that oath is diminished because there is no realistic perjury sanction.[19] In the Oudovenko case, the Court considered the inability to sanction a witness for perjury (in a case in which the defendant “may exercise some control over these witnesses”) to result in “a heightened risk that an oath will be unable to instill in them a duty to tell the truth even if the truth hurts Oudovenko.”[20] However, while witnesses committing perjury with impunity when giving testimony abroad is a legitimate concern, the jury is fully competent to take such concern into account when weighing the credibility of their testimony.[21]

Another countervailing factor against authorizing Rule 15 depositions is a concern for the safety of the lawyers where travel to a foreign location is required. The Ninth Circuit has ruled that before authorizing a deposition to be taken abroad, the district court should “consider whether the safety of United States officials would be compromised by going to the foreign location.”[22] The Eleventh Circuit however, took a different approach and ruled that concern for prosecutors’ safety did not necessarily warrant denying a defendant’s motion to take a deposition in a foreign location.[23]

Also, Dr. Lorandos teaches that a moving party’s diligence and the timing of the prospective depositions are relevant considerations to be weighed when considering a Rule 15 request. “An obviously important factor is whether a deposition will expedite, rather than delay, the administration of criminal justice.”[24] While delay may be a countervailing factor, such delay must be the product of a “serious lack of due diligence by the moving party” in order to deny a Rule 15 motion on that basis alone.[25] “The ultimate inquiry is whether exceptional circumstances exist and whether it is in the interest of justice to allow the deposition.”[26]

Defense counsel may consider adopting the arguments often made by the prosecution when seeking Rule 15 depositions for prosecution witnesses; that is, that the Court should deny an order to take a deposition only when “significant countervailing factors…would render the taking unjust.”[27] An injustice to the government is likely to be nearly non-existent and certainly outweighed by the Court’s need to avoid a violation of the defendant’s due process rights. In general, denial of a defendant’s motion, absent alternative means to present such evidence at trial, is a denial of the Fifth and Sixth Amendments. However, in the event that the Court denies the motion, counsel should be certain that a proffer of the anticipated testimony has been made a part of the record, so that the issue is properly preserved and if necessary, can be later reviewed on appeal.

[1]U.S. v. Jefferson, 594 F.Supp.2d 655 (E.D. Virginia, 2009) citing U.S. v. Rosen, 240 F.R.D. 204, 209 (E.D. Va. 2007). The term “exculpatory” may not be accurate as it is nowhere to be found in the Supreme Court’s main opinion in Brady. The term “favorable information” accurately conveys the terminology of Brady. See Mark Mahoney, The Right to Present A Defense, pg. 12, n. 12 (2009).

[2]U.S. v. Rosen, 240 F.R.D. 204, 209-210 (E.D. Va. 2007).

[3]U.S. v. Drogoul, 1 F.3d 1546 (11th Cir. 1993).

[4]U.S. v. Ismaili, 828 F.2d 153 (3d Cir. 1987).

[5]U.S. v. Hagedorn, 253 F. Supp. 969, 971 (S.D.N.Y. 1966).

[6]U.S. v. O’Keefe, 509 F.Supp.2d 33, 36 (D.D.C., 2007).

[7]U.S. v. Greco, 685 F.2d 793 (3d Cir. 1982).

[8]U.S. v. Hajbeh, 284 F. Supp. 2d 380 (ED. Va. 2003).

[9]Id.

[10] U.S. CONST., amend. V (“No person shall be... compelled in any criminal case to be a witness against himself.”).

[11] U.S. v. Ramos, 45 F.3d 1519 (11th Cir. 1995).

[12] U.S. v. Jefferson, 594 F.Supp.2d 655, 668 (E.D. Virginia, 2009).

[13] U.S. v. Liner, 435 F.3d 920, 924 (8th Cir. 2006).

[14] U.S. v. Vilar, 568 F.Supp.2d 429, 439 (S.D.N.Y., 2008).

[15] Id.

[16] U.S. v. Jefferson, 594 F.Supp.2d 655, 671 (E.D. Virginia, 2009) (“Rule 15 motion could founder on this ground alone, as it is not appropriate to initiate what will undoubtedly be an expensive and time-consuming process of attempting to depose the witnesses in Nigeria without some reasonable assurance that the prospective deponents do not intend to invoke the Fifth Amendment.”).

[17] U.S. v. Jefferson, 594 F.Supp.2d 655, 675-676 (E.D. Virginia, 2009). In Jefferson, the district court sent a letter rogatory to the Supreme Court of Nigeria and the Federal High Court of Nigeria requesting that the appropriate Nigerian judicial authority examine witnesses by written interrogatories regarding their willingness to waive their Fifth Amendment rights and answer questions fully in a later deposition.

[18] U.S. v. Dragoul, 1 F.3d 1546, 1552 (11th Cir. 1993).

[19] U.S. v. Alvarez, 837 F.2d 1024, 1029 (11th Cir.) (foreign deposition testimony suspect because of the absences of a sanction for perjury). Oudovenko, (because defendant may exercise some control over the witnesses, and heightened risk that an oath will be able to instill in them a duty to tell the truth even if the truth hurts Oudovenko).

[20] Oudovenko, supra.

[21] U.S. v. Jefferson, 594 F.Supp.2d 655, 672 (E.D. Virginia, 2009) citing U.S. v. Mills, 760 F.2d 1116, 1121 (11th Cir. 1985) (“[F]ugitive depositions are not only available but are sometimes wisely authorized despite their suspect veracity and the lack of a perjury sanction.”); U.S. v. Gonzalez, 488 F.2d 833, 839 (2d Cir. 1973).

[22] U.S. v. Olafson, 213 F.3d 435, 442 (9th Cir. 2000).

[23] U.S. v. Ramos, 45 F.3d 1519, 1523-1524 (11th Cir. 1995).

[24] Fed.R.Crim.P. 15 advisory committee’s note on 1974 amendment; also see U.S. v. Dragoul, 1 F.3d 1546, 1556 (11th Cir. 1993).

[25] U.S. v. Dragoul, 1 F.3d 1546, 1556 (11th Cir. 1993); U.S. v. Vilar, 568 F.Supp.2d 429, 442 (S.D.N.Y., 2008); also see U.S. v. Groos, 616 F.Supp.2d 777, 791 (N.D.IL. 2008); Cf. U.S. v. Birrell, 276 F.Supp. 798, 823 (S.D.N.Y., 1967) (denying a Rule 15 motion to depose a foreign witness where the motion to take the deposition came three weeks into trial).

[26] U.S. v. Dragoul, 1 F.3d 1546, 1552 (11th Cir. 1993).

[27] U.S. v. Dragoul, 1 F.3d 1546, 1552 (11th Cir. 1993) (court agreed that when a prospective prosecution witness is unlikely to appear at trial and his or her testimony is critical to the case, simple fairness requires permitting the moving party to preserve that testimony—by deposing the witness—absent significant countervailing factors which would render the taking of the deposition unjust).