Tooby's California Post-Conviction Relief for Immigrants

(D)

Foreign Depositions.  In federal criminal cases, the court may in exceptional circumstances allow a party to take a deposition of a witness in a foreign country.[236]  Practical suggestions concerning the taking of such depositions include taking great care to obtain an interpreter and learning about the cultural aspects of the experience.[237]  A foreign deposition is taken under a “letter rogatory,” which is a request from a court in the United States for assistance from a court abroad.[238]  These requests are based on treaty obligations or the concept of “comity” between nations.[239]  The foreign court may compel the testimony of the foreign witness if it chooses to do so.  If the defense has complied with the procedural requirements of F.R.Crim.P. 15, a court may commit reversible error by refusing to order the deposition of a foreign witness, who is unwilling or unable to travel to the United States to testify.[240]

            If the court orders a deposition, and the witness is unavailable at trial, the deposition will probably be admissible.[241]  A court’s refusal to admit sworn videotaped depositions can violate the defendant’s constitutional right to present a defense.[242]

[236] F.R.Crim.P. 15(a) (allowing court to order foreign deposition “[w]henever due to exceptional circumstances of the case it is in the interests of justice that the testimony of a prospective witness or a party be taken and preserved for use at trial.”); 18 U.S.C. § 3503; see United States v. Sanchez-Lima, 161 F.3d 545, as amended on denial of rehearing and rehearing en banc (9th Cir. Dec. 11, 1998) (Sixth Amendment error to fail to admit into evidence sworn videotaped deposition testimony of deported Mexican witness); United States v. Sines, 761 F.2d 1434 (9th Cir. 1985).  See also United States v. Dragoul, 1 F.3d 1546, 1553 (11th Cir. 1993).

[237] See Ivanichvili, A Lawyer’s Guide to Cross-Cultural Depositions, 32 Colo. Law. 81 (2003).

[238] See generally R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law § § 12.42-12.46, 359-360 (2d ed. 2006).

[239] See, e.g., Wright and Miller, Federal Practice and Procedure § § 2083, 1134 (1970) and 1992 Supplement at 206-207.

[240] See United States v. Sensi, 879 F.2d 888, 899 (D.C. Cir. 1989); United States v. Sun Myung Moon, 93 F.R.D. 558, 559-560 (S.D.N.Y. 1982); United States v. Wilson, 601 F.2d 95, 97-99 (3d Cir. 1979).  Some courts, however, refuse to authorize the deposition of a witness who is a fugitive and a coconspirator.  See United States v. Richardson, 588 F.2d 1235, 1241 (9th Cir. 1978); United States v. Murray, 492 F.2d 178, 195 (9th Cir. 1973).

[241] F.R.Evid. 804.  See United States v. Johnpoll, 739 F.2d 702, 708-710 (2d Cir. 1984). 

[242] United States v. Sanchez-Lima, 161 F.3d 545, 548, as amended on denial of rehearing and rehearing en banc (9th Cir. Dec. 11, 1998) (Sixth Amendment error to fail to admit into evidence sworn videotaped deposition testimony of deported Mexican witness).