A deposition may be ordered at the request of any party if the requesting party demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at trial.

“Exceptional circumstances” under this rule includes circumstances under which the deponent is likely to be unavailable to testify at the time of trial.

A victim’s declination to testify at a preliminary hearing or a victim’s declination to submit to pretrial interviews shall not, by themselves, be considered “exceptional circumstances” under this rule.

A request for a written deposition may not be approved without the consent of the opposing party except when the deposition is ordered solely in lieu of producing a witness for sentencing under R.C.M. 1001 and the authority ordering the deposition determines that the interests of the parties and the court-martial can be adequately served by a written deposition.

A request for an oral deposition may be approved without the consent of the opposing party.

A deposition is the out-of-court testimony of a witness under oath in response to questions by the parties, which 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, which 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. Note that under R.C.M. 702(j) a deposition may be taken by agreement of the parties without the necessity of an order. Part or all of a deposition, so far as otherwise admissible under the Military Rules of Evidence, may be used on the merits or on an interlocutory question as substantive evidence if the witness is unavailable under Mil. R. Evid. 804(a) except that a deposition may be admitted in a capital case only upon offer by the defense. See Mil. R. Evid. 804(b)(1). 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. See Mil. R. Evid. 613. If only a part of a deposition is offered in evidence by a party, an adverse party may require the proponent to offer all which is relevant to the part offered, and any party may offer other parts. See Mil. R. Evid. 106. A deposition which is transcribed is ordinarily read to the court-martial by the party offering it. See also R.C.M. 702(i)(1)(B). 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. Part or all of a deposition so far as otherwise admissible under the Military Rules of Evidence may be used in presentencing proceedings as substantive evidence as provided in R.C.M. 1001. DD Form 456 (Interrogatories and Deposition) may be used in conjunction with this rule. See Article 6b(e)(2) concerning a victim’s right to petition a Court of Criminal Appeals to quash an order to submit to a deposition.

Upon request of a party:

Subject to R.C.M. 702(b)(2), before referral, a convening authority, or, after referral, the convening authority or the military judge, may order a deposition.

For offenses over which special trial counsel exercises authority: (i) Before referral, only a military judge may order a deposition, pursuant to R.C.M. 309(b)(3). (ii) After referral, only a military judge may order a deposition.

A party requesting a deposition shall do so in writing, and shall include in such written request—

The name and contact information of the person whose deposition is requested, or, if the name of the person is unknown, a description of the office or position of the person;

A statement of the matters on which the person is to be examined;

A statement of the reasons for needing to preserve the testimony of the prospective witness; and

Whether an oral or written deposition is requested.

A copy of the request and any accompanying papers ordinarily should be served on the other party when the request is submitted.

The authority under subsection (b) who acts on a request for deposition shall promptly inform the requesting party of the action on the request and, if the request is denied, the reasons for denial.

If a request for deposition is denied by the convening authority, the requesting party may seek review of the decision by the military judge after referral.

When a request for a deposition is approved, the convening authority shall detail a judge advocate certified under Article 27(b) to serve as deposition officer. In exceptional circumstances, when the appointment of a judge advocate as deposition officer is not practicable, the convening authority may detail an impartial commissioned officer or appropriate civil officer authorized to administer oaths, other than the accuser, to serve as deposition officer. If the deposition officer is not a judge advocate certified under Article 27(b), an impartial judge advocate so certified shall be made available to provide legal advice to the deposition officer.

See Article 49(a)(4). When a deposition will be at a point distant from the command, an appropriate authority may be requested to make available an officer to serve as deposition officer.

If charges have not yet been referred to a court-martial when a request to take a deposition is approved, the convening authority shall ensure that counsel qualified as required under R.C.M. 502(d) are assigned to represent each party.

The counsel who represents the accused at a deposition ordinarily will form an attorney-client relationship with the accused, which will continue through a later court-martial. See R.C.M. 506. If the accused has formed an attorney-client relationship with military counsel concerning the charges in question, ordinarily that counsel should be appointed to represent the accused.

The convening authority may give instructions not inconsistent with this rule to the deposition officer.

Such instruction may include the time and place for taking the deposition.

The requesting party shall give to every other party reasonable written notice of the time and place for the deposition and the name and address of each person to be examined. On motion of a party upon whom the notice is served, the deposition officer may for cause shown extend or shorten the time or change the place for taking the deposition, consistent with any instructions from the convening authority.

In accordance with this rule, and subject to any instructions under subparagraph (d)(3)(C), the deposition officer shall—

Arrange a time and place for taking the deposition and, in the case of an oral deposition, notify the party who requested the deposition accordingly;

Arrange for the presence of any witness whose deposition is to be taken in accordance with the procedures for production of witnesses and evidence under R.C.M. 703;

Maintain order during the deposition and protect the parties and witnesses from annoyance, embarrassment, or oppression;

Administer the oath to each witness, the reporter, and interpreter, if any;

In the case of a written deposition, ask the questions submitted by counsel to the witness;

Cause the proceedings to be recorded so that a verbatim transcript may be prepared;

Record, but not rule upon, objections or motions and the testimony to which they relate;

Certify the record of the deposition and forward it to the authority who ordered the deposition; and

Report to the convening authority any substantial irregularity in the proceeding.

When any unusual problem, such as improper conduct by counsel or a witness, prevents an orderly and fair proceeding, the deposition officer should adjourn the proceedings and inform the convening authority. The authority who ordered the deposition should forward copies of the transcript of the deposition to the parties.

At an oral deposition, the accused shall have the following rights:

Except as provided in subparagraph (B), the right to be present.

The right to be represented by counsel as provided in R.C.M. 506.

At an oral deposition, the accused shall not have the right to be present when—

the accused, absent good cause shown, fails to appear after notice of time and place of the deposition;

the accused is disruptive within the meaning of R.C.M. 804(c)(2); or

the deposition is ordered in lieu of production of a witness on sentencing under R.C.M. 1001 and the authority ordering the deposition determines that the interests of the parties and the court-martial can be served adequately by an oral deposition without the presence of the accused.

The accused shall have the right to be represented by counsel as provided in R.C.M. 506 for the purpose of taking a written deposition, except when the deposition is taken for use at a summary court-martial unless otherwise provided by the Secretary concerned.

Each witness giving an oral deposition shall be examined under oath. The scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself. The Government shall make available to each accused for examination and use at the taking of the deposition any statement of the witness which is in the possession of the United States and to which the accused would be entitled at the trial.

As to objections, see R.C.M. 702(e)(7) and (h). As to production of prior statements of witnesses, see R.C.M. 914; Mil. R. Evid. 612, 613. A sample oath for a deposition follows: “Do you (swear) (affirm) that the evidence you give shall be the truth, the whole truth, and nothing but the truth (so help you God)?”

In the discretion of the authority who ordered the deposition, a deposition may be recorded by a reporter or by other means including video and audio recording.

No party has a right to be present at a written deposition.

The party requesting a written deposition shall submit to opposing counsel a list of written questions to be asked of the witness. Opposing counsel may examine the questions and shall be allowed a reasonable time to prepare cross-interrogatories and objections, if any.

The interrogatories and cross-interrogatories should be sent to the deposition officer by the party who requested the deposition. See R.C.M. 702(h)(3) concerning objections.

The deposition officer shall swear the witness, read each question presented by the parties to the witness, and record each response. The testimony of the witness shall be recorded on videotape, audiotape, or similar material or shall be transcribed. When the testimony is transcribed, the deposition shall, except when impracticable, be submitted to the witness for examination. The deposition officer may enter additional matters then stated by the witness under oath. The deposition shall be signed by the witness if the witness is available. If the deposition is not signed by the witness, the deposition officer shall record the reason. The certificate of authentication shall then be executed.

A failure to object prior to the deposition to the taking of the deposition on grounds which may be corrected if the objection is made prior to the deposition forfeits such objection unless the objection is affirmatively waived.

Objections to questions, testimony, or evidence at an oral deposition and the grounds for such objection shall be stated at the time of taking such deposition. If an objection relates to a matter which could have been corrected if the objection had been made during the deposition, the objection is forfeited if not made at the deposition.

A party may show that an objection was made during the deposition but not recorded, but, in the absence of such evidence, the transcript of the deposition governs.

Objections to any question in written interrogatories shall be served on the party who proposed the question before the interrogatories are sent to the deposition officer or the objection is forfeited. Objections to answers in a written deposition may be made at trial.

The ordering of a deposition under paragraph (a)(1) does not control the admissibility of the deposition at court-martial. Except as provided in paragraph (2), a party may use all or part of a deposition as provided by the rules of evidence.

In the discretion of the military judge, audio or video recorded depositions may be played for the court-martial or may be transcribed and read to the court-martial.

Testimony by deposition may be presented in capital cases only by the defense.

A deposition read into evidence or one that is played during a court-martial is recorded and transcribed by the reporter in the same way as any other testimony. Such a deposition need not be included in the record of trial.

Nothing in this rule shall preclude the taking of a deposition without cost to the United States, orally or upon written questions, by agreement of the parties.

Subject to Article 49, nothing in this rule shall preclude the use of a deposition at the court-martial by agreement of the parties unless the military judge forbids its use for good cause.