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