Depositions play a key part of civil cases. In only a few states are they common in criminal cases, and they are extremely rare in Federal criminal cases.
However, occasionally the situation arises that a critical witness is unavailable to travel to the criminal courtroom in which the trial is being held. When this occurs one party in the criminal case may ask the the court for permission to take the sworn testimony of the witness in a different location and at a different time than that of the criminal trial.
I’m involved in a Federal criminal case in which the government wants the testimony of three witnesses who reside in Europe. None of the witnesses would volunteer to travel to the United States to testify at trial. As a consequence, the government sought permission to take the deposition of these three witnesses. The US court granted permission and the government began the lengthy process of getting permission from the governments of Switzerland and Lichtenstein to take the depositions. One year later it finally happened.
The process of taking depositions in a foreign country raised some thorny issues. First, the government was not thrilled with the idea of my client traveling over seas. As a condition of his bond the court required him to surrender his passport and obviously he was going to need that in order attend the depositions. The government requested that he attend solely by video-camera. Although that raises obvious Confrontation Clause issues, the US court was satisfied with the proposed arrangement. However, the European governments required the presence of the defendant so permission to travel was granted with the requirement that I retain custody of my client’s passport when he was not passing through customs.
Shortly before the scheduled depositions, one of the witnesses decided not to attend. What!? That was the first time that I learned the foreign witnesses had a choice in the matter. Was it possible that we could travel to Europe and have a witness decline to participate? Apparently so.
We had three depositions scheduled, the first on a Tuesday, the second on a Thursday, and the third the following Monday. This meant after taking the first deposition, there was a six day wait to take the second deposition. Time to hang out in Zurich in rainy November!
The final deposition was in Lichtenstein. The entire country of Lichtenstein has only 35,000 people. The capitol of Lichtenstein is Vaduz. It only has a population of 5,000 and is so small that a train does not even run to it. I found out it cost $800 to take a taxi from Zurich to Vaduz, so I found myself getting up very early in freezing weather walking to a train station in Zurich, getting off in Sargans, and trying to catch the right bus to Vaduz. When I got to Vaduz I wandered around in the cold for another hour trying to find the darn courthouse.
When I got through the security of the bullet proofed courthouse, the judge, (who sported an earring), demonstrated that he was going to play an active role in the proceedings. He warned me all questions would have to be in accordance with the law of Lichtenstein. That seemed like a problem for two reasons. One, I knew nothing about the law of Lichtenstein. Two, since this testimony was supposed to be used in a criminal case in the US, my client had some constitutional rights concerning my right to ask questions.
Just before the deposition got underway, the witness’ lawyer asked me if my client waived the privilege that he enjoyed with respect to the witness. That was news to me! My client merely had to invoke the privilege that he apparently enjoyed under the law of Lichtenstein and the whole show would come to a stop? I said, “my client is not waiving any privilege.” That seemed to fluster some feathers. The judge said, the lack of waiver was irrelevant for the purposes of the proceedings and told us to carry on. “Oh well.”
Once the deposition got underway, I found that German can sound very harsh in a courtroom setting. Several times the judge interrupted the proceedings to instruct the witness, admonish a lawyer, or clarify a point. Each time he did this it sounded like he was pissed off to my English ears, but I don’t think he really was.
I was particularly amused when the judge interrupted my brief cross-examination. It seems I struck a nerve with my line of questioning because the witness’ lawyer was anxious to interrupt the proceedings. Instead the judge intervened and said, “you have hit upon a critical issue, Mr. Mickelsen. Therefore, please make your questions open ended.” What? The primary rule of cross-examination (at least in the US) is not to ask open-ended questions. This is especially true when one has hit upon a “critical issue.” I blabbered something about my client’s Constitutional rights under American law and proceeded as best as I was able. Eventually I got my point across.
All in all, an extremely interesting experience.