If an essential witness who is not subject to a subpoena
(see USAM 9-13.525 and
this Manual at 279) is unwilling to come to
the United States to testify, the prosecutor may attempt to proceed
means of a deposition. See Fed. R. Crim. P. 15 and 18 U.S.C.
§ 3503. In some countries, depositions of willing witnesses may
taken at the American Embassy or consulate without a formal
Other countries permit the taking of such depositions only from
States citizens. Still others prohibit any depositions except those
taken pursuant to a formal request.|
Depositions pursuant to formal requests must be taken in
the laws and procedures of the place where the request is executed.
cases, those laws do not authorize direct examination by attorneys
parties, or even the presence of both parties. In most civil law
example, the judge questions the witnesses. Countries may also
or even verbatim transcripts. Administering an oath to a witness
prohibited if he or she is a potential defendant. Thus, a request
deposition be conducted in accordance with United States procedures
honored only if it does not violate local laws, the resources for
available, and the significance of the request is understood by the
authority. Office of International Affairs (OIA) will use its best
assist the prosecutor in arranging for procedures that will result
The confrontation right of the defendant, which may imply a
right to be
present at the deposition, may give rise to problems if he or she
is in custody
in the United States or subject to arrest in the country where the
scheduled. Other problems may also arise. "Depositions taken in
countries cannot at all times completely emulate the United States'
obtaining testimony." United States v. Sturman, 951 F.2d
1466, 1481 (6th
Cir. 1991), cert. denied, 504 U.S. 985 (1992). Even if
procedures are followed, courts generally hold that the depositions
admissible unless "the manner of examination required by the law of
nation is so incompatible with our fundamental principles of
fairness or so prone
to inaccuracy or bias as to render the testimony inherently
United States v. Salim, 855 F.2d 944, 953 (2d Cir. 1988)
of depositions where defendants were not present at French
counsel were not permitted to be present while the witness
testified, and the
presiding magistrate conducted the examination, asking questions
submitted in writing).
Procedure for determining whether a foreign deposition is
feasible and for preparing to take a foreign deposition:
- Consult the Office of International Affairs (OIA) to
and under what circumstances a foreign deposition may be taken.
- Confirm the availability of funds from the administrative
officer of your
- Draft a formal request, if necessary, and submit it to OIA.
See this Manual at 281
- Move for depositions under Fed. R. Crim. P. 15.
- Submit a timely request for official travel through the
for United States Attorneys (Assistant United States Attorneys) or
- Obtain official passports and visas.
Remember that a court reporter may not be available overseas,
to bring one to the deposition. Interpreters, if necessary, can
retained locally through the American consular or diplomatic
[cited in Criminal Resource Manual 278; Criminal Resource Manual 283; Criminal Resource Manual 284; USAM 9-13.535]