Legal Research on Rule 15 (Depositions)

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ir.

ARRAIGNMENT Rule 15

i,.nrlant
ntion to
r nl fails
s,.'," (2)
rstimony
* hether
,t,iy the
n of the
rit to a
,hiatrist.
i.-ordered
;] expert
, mental

ces with
rning the
he courge
iule 12.2.

,'ourse of
,rl her the
nr of the
t the ac-
ltrrmines
nation of

,nt's fifth
,, State v.
,'he provi-
he use of
itaLement
' issue of
has been
n a single
rtrist only
uiroments
ct on the

.ttr:mpt to
itut.ionally
nmination
one. The
he phrase,
t constitu-
rgo a psy-
livrsion (c)
fendant is
'examina-
lirision (c),
rstitutional

'TEPORT

lnc exami-
statement
psychiatric
,grrinst the
lnrines tht:
;{uilt. The

,,vision and
) as it was

originally introduced. The Conference adopted languagc
provides that no statement made by the defendant during
a psychiatric examination provided for by the rulc shali bc
admittcd against him on the issue of guilt in any criminal
proceeding.

The Conference believes that the provision in H.R. 6?9g
as origirally introduced in the House adequately protccts
the defendant's fifth amendment right againit-self-in-
crimination. The rule does not preclude use of statements
made by a defendant during a court-ordered psychiatric
examination. The statements may be relevani to the
issue of defendant's sanity and admissable on that issue.
However, a limiting instruction would not satisfy the rule
if a statement is so prejudicial that a limiting instruction
would be ineffective. Cf. Practice under 18 U.S.C. 4244.

Rule 13. Trial Together of Indictments or In-
formations

The court may order two or more indictments or
informations or both to be tried togethcr if thc
offenses, and the defendants if there is more than
one, could have been joined in a single indictment or
information. The procedure shall be the same as if
the prosecution were under such singlc indictment
or information.

NOTES OF ADVISORY COMMITTEE ON RULES
This rule is substantially a restatement of existing law,

18 U.S.C. former g 557 (lndictments and presentments;
joinder of charges); Logan v. Ilnited States, l44 U.S. 263,
296, 12 S.Ct. 617, 36 L.Ed. 429; ShowalLer v. IJnited
States, 260 Fed. ?19, C.C.A.4th, certiorari denietl 1b0 U.S.
672,40 S.Ct. 14, 63 L.Ed. tZ(N; Hostettcr v. IJniLctl Stztes,
16 F.2d 921, C.C.A.8th; Capone v. lJnited States, 5l l'.?l
600, 61S$20, C.C.A.?th.

Rule 14. Relief from Prejudicial Joinder
If it appears that a defcndant or the government

is prejudiced by a joindcr of offcnses or of <lcfcnrl-
ants in an indictment or information or bv such
joinder for trial together, the court *ry o"",1.. n,
election or separate trials of counts, grant a sever-
ance of defendants or provide whatever other relief
justice requires. In ruling on a motion by a defenri-
ant for severance the court may order the attorney
for the government to dcliver to the court for
inspection in camera any stalements or confcssiorrs
made by the defendants which the government
intends to introduce in evidence at thc trial.
(As amended Feb. 28, 1966, eff. July 1, 1966.)

NOTES OF ADVISORY COMMIT'TEE ON RUT-ES

This rule is a restatement of existing law undcr which
severance and other similar rclicf is entircly in the discrc-
tion of the court, 18 U.S.C. formcr g 55? (lnrlictmcnLs anr,
pr$cntmcnt^s; jointlcr of charges); I\tinlar v. LInilarl
Ststtrr, l5l U.S. 396, 14 S.Ot. 410,3U L.Iil. 208; l'icrca v,
United Statas, 160 U.S. 355, 16 S.Ct. 321, 40 L.Ed. 4ba;
United States v. Ball, 163 U.S. 662, 6?3, 16 S.Cr. 1192, 41
L.E<i.300; Sti/son v. Ilniled StaLes, 250 U.S. 583,40 S.Ct.
A,63 L.Eri. 1154.

1966 AMENDMENT

A defendant may be prejudiced by the admission in
evidence against a co-defendant of a statement or confes-
sion made by that co<lefendant. This prejudice cannot be
dispelled by cross-examination if the codefendant does
not take the stand. Limiting instructions to the jury may
not in fact erase the prejudice. While the question wheth-
er to g'rant a severance is generally left within the discre-
tion of thc trial court, recent Fifth Circuit cases have
found sufficient prejudice involved to make denial of a
motion for severance reversible error. See Sb}affer v.
United States, 221 F.zd i? (5th Cir. 1955); Barton v.
United States, 263 ?.ZJ 894 (sth Cir. 1959). It has even
been suggested that when the confession of the co-defend-
ant comes as a surprise at the trial, it may be error to
dcny a motion or a mistrial. See Belvin v. lJnitcd States,
273 F.ZJ 583 (5th Cir. 1960).

Thc purpose of thc amcndment is to provide a proccdure
whcreby the issue of possible prejudice can be resolved on
the motion for severancc. The judge may direct the
disclosure of the confessions or statements of the defend-
ants to him for in camera inspection as an aid to determin-
ing whether the possible prejudice justifies ordering sepa-
rate trials. Cf. note, Joint and Single Trials Under Rules
8 and 14 of the Federal Rules of Criminal Procedure, 74
Yale L.J. 551, 565 (i965).

Rule 15. Depositions
(a) When Taken. Whenever due to exceptional

circumstances of the case it is in the interest of
justice that the testimony of a prospective witncss
of a party bc takcn and p@1,
the court may upon motion of such party and notice
to thc partics order that testimony of such u'itncss
lle takcn by dcposition and that any designated
book, papcr, document, record, recording, or other
material not privilegerl, be produced at the same
tirne and place. If a witness is committed for
failurc to give bail to appcar to testify at a trial or
hearing, the court on written motion of the witness
and upon notice to the parties may direct that his
deposition be taken. After the deposition has been
subscribed the court may discharge the witness.

(b) Notice of Taking. The parly at whose in-
stance a dcposition is to be taken shall give to every
party rcasonable written notice of the time and
place lor taking the dcposition. The notice shall
state the name and address of each person to be
examincd. On motion of a party upon whom the
notice is served, t,he court for cause shown may
extend or shorten the time or change the place for
taking thc deposition. The officer having custody
of ii dcf<:nrlant shall lrc notificd of the timc and
placc sct ior thc cx:rminaLion and shall, unless thc
tlcfcnrlant w:rivcs in writ"ing thc right to tlc prcsent,
lrrorlucc hinr at lhe e .x:rnrination anrl kcep him in the
presence ol the witncss during thc examination,
unless, after bcing warned by the court that disrup-
tivc conduct'will cause him to be rernoved from the

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Complete Annotation Materials, see Tiile 18 U.S.C.A.
:ll



.. .. .lle-.. .

Rule 15 RULES OF CRIMII\IAL PROCEDURE

placg of the taking of the deposition, hc persists in
conduct which is such as to iustifv his beiirs cxclud-
e! frgm that place. A deiendant not in'custody
shall have the right to be present at the examina"-
tion upon rSquest subject to such terms as may be
fixed b-y the court, but his failure, absent good
cause shown, to appear after notice and tender of
expenses in accordance with subdivision (c) of this
rule shall constitute a waiver of that right and of
a.ny objection to the taking and use of ihe deposi-
tion based upon that right.

. (c)- Payment of Expenses. Whenever a deposi-
tion is taken at the instance of the governmenl, or
whenever a deposition is taken at thi instance of a
defendant who is unable to bear the expenses of the
taking of the deposition, the court may direct that
the expense of travel and subsistence of the defend-
ant and his attorney for attendance at the examina-
tion and the cost of the transcript of the deposition
shall be paid by the government.

(d) How Taken. Subject to such additional con-
ditions as the court shall provide, a deposition shall
be taken and filed in the manner provided in civil
actions except as otherwise provided in these rules,
provided that (1) in no event shall a deposition be
taken of a party defendant without his consent, and
(2) the scope and manner of examination and cross-
examination shall be such as would be allowed in
the trial itself. The government shall make availa-
ble to the defendant or his counsel for examination
and use at the taking of the deposition any state-
ment of the witness being deposed which is in the
possession of the government and to which the
defendant would be entitled at the trial.

NOTES OF ADVISORY COMMITTEE ON RULES

Note to Subdiviaion (a). 1. This rule continues the
existing law permitting defendants to take depositions in
certain limited classes of cases under dedimus potestatem
and in perpetuam rei memoriam, 28 U.S.C. former g 644.
This statute has been generally held applicable to criminal
cases, Clymer v. Unitcd StaCes, 38 F.2d 581, C.C.A.l0th;
Wong Yim v. Unitnd Stares, 118 F.zd 66?, C.C.A.gth,
certiorari denied 313 U.S.589,61 S.Ct. 1112,85 L.Ed. 1544;
Unitd Statns v. Cameron, 15 Fed. 794, C.C.E.D.Mo.;
Unitd Statcs v. Hofmann, % F.Supp. 847, S.D.N.Y. Con-
lra, Luxembrg v. Unitcd States, 45 ? .?,tl 497 , C.C.A.4th,
certiorari denied 283 U.S. 820, 51 S.Ct. 345, 75 L.&1. 14ilQ-
The rule continues the limitation of the statute that thel
taking of depositions is to be restricted to cases in whichf
they are necessary "in order to prevent a failure ofl
justice,"

2. Unlike the practice in civil cases in which deposi-
tions may be taken as I mstter of right by notice without
permission of the court (Rules 2(a) and 30, Federal Rules
of Civil Procedure, 28 U.S.C., Appendix), this rule permits

Ru'
gover
authc

Th,
Crim'
that'
govef

" Attor
A perr
ized c
rule

De'
goon

incon,
of th,
for tl
drxig,
Ststr'.
from
frpm
(1970,

Thc
Contr
earlie
Rules
g€ver:

Tht,
Pu*,
take .

Procc.
Draft
rv2,
The ,

allowi
not p
court
under
sition
380-l,

The
recon
gover
Supre

Thc
dep.r..
a wit
shall i

and sr

the pr
defen.
have
gover.
ney a/
subsi:,'

Sec
Rulcs
Fcrle r.

Th,:
thus
goverr
ment.

the exercise of disoetion anil-n noIiE-to-E'lf]-arties. It
was contemplated that in criminal cases depositions would
U.--r:"d,*fujryrr4pliqlat il , aiTfffi-fhe

(e) Use. At the trial or upon any hearing, a part
or all of a denosition- so far a-q otherwise admissihle

practice heretofore.
3. This rule introduces a new feature in authorizing

the taking of the deposition of a witness committed for
failure to give bail (see Rule 4(b)). This matter is,
however, left to the discretion of the court. The purpose
of the rule is to afford a method of relief for such a
witness, if the court finds it proper to extend it.

Note to Subdivision (b). This suMivision, as well as
suMivisions (d) and (f), sets forth the procedure to be
followed in the event that the court grants an order for
the taking of a deposition. The procedure prescribed is
similar to that in civil cases, Rules 28-31, Federal Bules of
Civil Proccdure, 28 U.S.C., Appendix.

Note to Subdivigion (c). This rule introduces a new
feature for the purpose of protecting the rights of an
indigent defendant.

Note to Subdivieion (d). See Note to SuMivision (b),
supra.

Note to Subdivieion (e). In providing when and for
what purpose a deposition may be used at the trial, this
rule generally follows the corresponding provisions of the
Federal Rules of Civil Procedure, Rule 26(dxg), 28 U.S.C.,
Appendix. The only difference is that in civil cases a
deposition may be introduced at the trial if the witness is
Bt a greater distance than 100 miles from the place of
trial, while this rule requires that the witness be out of the
United Statrs. The distinction results from the fact that
a subpoena in a civil case runs only within the district
where issued or 100 miles from the place of trial (Rule
45(cXl), l'edcral Rulcs of Civil Proocdurc, 28 U.S.C., Ap-
1rcn<lix), whilc a subpocna in a criminal case runs through-
out thc United Stttcs (sce llule l?(cXl), infra).

Note to Subdivigion (f). See Note to SuMivision (b),
supra.

ny at the trial or hearing inconsistent with his
deposition. Any deposition may also be used by any
party for the purpose of contradicting or impeach-
ing the testimony of the deponent as a witness. If
only a part of a deposition is offered in evidence by
a party, an adverse party may require him to offer
all of it which is relevant to the part offered and
any party may offer other parts.

(As amended Apr. D, 1974, eff. Dec. 1, l9?5; July 31,
1975, Pub.L. 94-64, S 3(15H19), 89 Stat. 373,3'14.)

(0 Objections to Deposition Testimony. Objec-
tions to deposition testimony or evidencc or parts
thereof and the srorrnds for lhe ohir.ction shall bc

of the

Nothing in this rule shall preclude the taking of a
deposition, orally or ugxln written rlucstions, or thc
uqc of a delrcsition, lly ngrcement of thc partics
with the consent of thc court.

Complete Annotation Materials, see Title 18 U.S.C.A.

48



--:;u*,#-. * 4*'b 4Iiihias-
I
I

- ---iD, -i -,,-.

ARRAIGNMENT Rule 15
LES

inueg the
,sitions in
rLestatem
'er $ 644.
r criminal
c.A,10th;
l.c.A.9th,
Ed. 1544;
.E.D.Mo.;
,1.Y. Con-
l.c.A.4th,
Ed. 1,til6.
that the
in which
,rilure of

h deposi-
r without
ral Rules
,: permits
, made in
'rties. It
,ns would
been the

thorizing
,itted for
ratter is,
' purpose
r such a

.r well as
re to be
rrder for
eribed is
Rules of

sanew
ts of an

ision (b),

and for
rial, this
'rs of the
e u.s.c.,
cases a
itness is
plrrce of
.rt of the
laet that
' district
al (Rule
l.C., Ap-
l.hrough-

'sion (b),

I974 AMENDMENT

Rule 15 authorizes the taking of depositions by the
government. Under former rule 15 only a defendant was
authorized to take a deposition.

The revision is similar to Title VI of the Organized
Crime Control Act of 19?0. The principal difference is
that Title VI (18 U,S.C. S 3503) limits the authority of rhe
government to take depositions to cascs in which the
Attorney General certifies that the "procccding is against
I ryrson who is believed to have participated in an organ-
ized criminal activity." This limitation is not contained in
rule 15.

Dealing with the issue of government depositions so
soon after the enactment of 18 U.S.C. S 3503 is not
inconsistent with the congressional purpose. On the floor
of the House, Congressman Poff, a piincipal.spokesman
for the proposal, said that the Houie veision was not
designed to "limit the Judicial Conference of the Unitcd
States in the exercise of its rule-making authority . . .

from addressing itself to other problems in this aiea or
from adopting a broader approach." 116 Cong.Rec. 85298
(le?0).

The recently enacted Title VI of thc Organizcd Crime
Control Act of l9?0 (18 U.S.C. S 3503) is based upon
earlier efforts of the Advisory Committee on Criminal
Rules which has over the past twenty-five years submittcd
several proposals authorizing government depositions.

The earlier drafts of the Federal Rules of Criminal
Procedure proposed that the government be allowed to
take depositions. Orfield, The Federal Rules of Criminal
Procedure, 33 Calif.L.Rev. 543, 559 (1945). Thc Fifth
Draft of what became rule 15 (then rule 110) dated Junc
1942, was submitted to the Supreme Court for comment.
The court had a number of unfavorablc comments about
allowing government depositions. These comments were
not published. The only reference to the fact that the
court made comments is in 2 Orfield, Criminal Procedure
urder the ['ederal Rules g 15:l (1966); and Orficld, Depo-
sitions in Federal Criminal Procedurc, I S.C.L.Q. 8?6,
38G.381(1957).

The Advisory Committee, in the 1940's, continucd to
recommend the adoption of a provision authorizing
government depositions. The final draft submitted to the
Supreme Court contained a section providing:

The following additional requirements shall apply if the
de!4siti^r i" t"l,.n rt tle in^tanee er tle gelern-.,It...1
a-Wjlgzu. The officer having custody of a defendant
shall be notified of the time and place set for examination,
and shall produce him at the examination and keep him in
the presence of the witness during the examinalion. A
defendant not in custody shall be given notice and shall

. The
t's attor-

Thc proposal to allow government depositions was re-
newcd in the amendments to the Feder:rl Rules of Crimi-
nal Procedure in the early lg60's. The Preliminary Draft
of Proposed Amendments to Rules of Criminal procedure
for the United States District Courts (December 1962)
proposed to amend rule 15 by eliminating the words ,,of a
defendant" from the first sentence of subdivision (a) and
adding a suMivision (g) which was practically identical to
the subdivision rejected by the Supreme Court in the
original draft of the rules.

The Second Preliminary Draft of Proposed Amendments
to Rules of Criminal Procedure for the United Stat€s
District Courts (March 1964) continued to propose allowing
governments depositions. SuMivision (g) was substantial-
ly modified, howcver.

The following additional requirements shall apply if the
dcposition is taken at the instance of the government or a
witness. Both the defendant and his attorney shall be
given reasonable advancc notice of the time and place set
for the examination. The officer having custody of a
defendant shall be notified of thc time and place iet for
the examination, and shall produce him at the examina-
tion and kecp him in the presence of the witness during
the examination. A defendant not in custody shall have
the right to be present at the examination but his failure
to appear after notice and tender of expenses shall consti-
tute a waiver of that right. The government shall pay to
the defendant's attorney and to a defendant not in custo-
dy expenses of travel and subsistence for attendance at
the examination. The government shall make available to
the defendant for his examination and use at the taking of
the deposition any statement of the witness being deposed
which is in the possession of the government and which
the government would be required to make available to
the defendant if the witness were testifying at the trial.

The proposal to authorize government dcpositions was
rejccted by the Standing Committee on Rules of Practice
and Proccdure, C. Wright, Federal Practice and Procedure
S 241 at 477 (1969). 4 Barron, Federal Practice and
Proccdure (Supp. 1967). The Report of the Judicial Con-
fercnce, submitted to the Supreme Court for approval late
in 1965, contained no proposal for an amendment to rule
15. See 39 F.R.D. 69, 168-211 (1966).

When the Organized Crime Control Act of 19?0 was
originally introduced in the Senate (S. 30) it contained a
government deposition provision which was similar to the
19M proposal of the Criminal Rules Advisory Committee,
except that the original bill (S. 30) failed to provide
standards to control the use of depositions at the trial.
For an explanation and del'ense of the original proposal
see McClellan, The Organized Crime Act (S. 30) or Its
Critics: Which Threatens Civil Liberties?, 46 Notre Dame
Lawyer 55, 100-108 (19?0). This omission was remedied,
prior to passage, with the addition of what is now 18
U.S.C. S 3503(f) which prescribes the circumstances in
which a deposition can be used. The standards are the
same as those in former rule 15(e) with the addition of
language allowing the use of the deposition when "the
witncss rcfuscs in thc tri:rl or hciiring to tcstify conccrn-
irrg thc suLjcct of thc rlclrosition or thc part offcrcd."

Ilcforc thc Organiz.cd Crinic Control Act of 1970 was
en:rcletl an a<ldilional amcndmcnt was addcd providing
that the right of the government to take a deposition is
limited to cases in which the Attorney General certifies

ney and a defendant not in custody expenses of travel and
sub,sistence for attendance at the examination.

See 2 Orfield, Criminal Procedure undcr the Federal
Rules $ l5:3, pp. M7 448 (1966); Orfield, Dcpositions in
Fcteral Criminitl Proctxlurc, {) S.C.l,.Q. iJ?6, :lt{:l (l9l-,?).

. The Supremc Court rr,jt:t:l.rxl this scction in this cntircty,
thus eliminating thc lrrovision for rlelxrsitions by thc
government. These changes were madc without com-
ment.

Complete Annotation Materials, see Title 18 U.S.C.A.

49



-Ere*-

Rule l5 RULES OF CRIMINAL PROCEDURE

thst the defendant is "believed to have participated in an
orcanized criminal activity" [18 U'S.C' S 3503(a)]. The
arEument in favor of the imendment was that the whole
pu-rpos€ of the act was to deal with organized crime and
iheiefore its provisions, including that providing .for
government depositions, should be limited to organized

crime type cases.

Thert is another aspect of Advisory Committee- history
which ig relevant. In January l9?0, the Advisory Commit-
tee circulatcd proposed changes in rule 16, one of which
gives the governmint, when ii has disclosed the identity of
i-ts witnes&s, the right to take a deposition anfl rr-ss i1 "1n

the event the witness has become unavailable without the
fault of the government or if the witness has changed his
testimony." lSee Preliminary Draft of Proposed Amend-
ments to the Federal Rules of Criminal Procedure for the
United States District Courts, rule l6(a)(lXvi) (January
ly?0).] This provision is now incorporated within rule
l6(aXlXv).

Because neither the court nor the standing committee
gave neasons for rejecting the government deposition pro-
posat, it is not possible to know why they were not
approved. To the extent that the rejection was based

uircn doubts as to the constitutio-nality-of.such. a proposal,

tliose doubts now seem resolved by California v. Green,
399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (19?0).

On the merits, the proposal to allow the government to
take depositions is consist€nt with the revision of rule 16

and witir section 804(b)(l) of the Rules of Evidence for the
United States Courts and Magistrates (November 19?1)

which provides that the following is not excluded by the
hearsey rule if the declarant is unavailable:

(1) Former Testimony. Testimony given as a witness at
anb[her hearing of the same or a different proceeding, or
in a deposition taken in compliance with law in the course
of anoiher proceeding, at the instance of or against a

party with in opportunity to develop the.testimony by

dirdt, cross, or 
-iedirect 

examination, with motive and

interest similar to those of the party against whom now
offered.

SuMivision (a) is revised to provide that the govern-
ment as well as the defendant is entitled to take a

deoosition. The phrase "whenever due to special circum-

"t n"". of the cise it is in the interest of justice," is

intended to make clear that the decision by the court as to
whether to order the taking of a deposition shall be made

in the context of the circumstances of the particular case.

The principal objective is the preservation of evidence for
u* it t;it. It is not to prbvide a method of pretrial
discovery nor primarily for the pu-rpose of obtaining a

basis foi later-cross-eiamination of an adverse witness.
Discovery is a matter dealt with in rule 16. An obvio!1qly

important factor is whether a deposition rvill expedite,
ratier than delay, the administration of criminal justice.

Also imoortant ii the presence or absence of factors which
detcrmi'ne the use of i deposition at the trial, such as the
agreement of the partieJ to use of the deposition; the
d*iUte unavailabifitv of the witness; or thc possibility
lhat cocrcion may bc uscd uyrn thc witncss to intlucc him
to change his testimony or not to tcstify. Sec ruk:
l(aXlXv).

SuMivision (a) also mtkcs cxplicit that only the "tcsti-
mony of a prospective witness of a party" can be taken'
This meansihe party's own witness and does not authorize

a discovery deposition of an adverse witness. The lan-
guage "foi use at trial" is intended to give further 9-TPhP-
iir 6 tte importance of the criteria for use specified in
suMivision (e).

In suMivision (b) reference is made to the defendant in
custody. If he is in stat€ custody, a writ of habeas corpus

ad tes[ificandum (to produce the prisoner for purposes of
testimony) may be required to accomplish his presence.

In suMivision (d) the language "except as otherwise
provided in these rules" is meant to make clear that the
subpoena provisions of rule 1? control rather than the
provisions of the civil rules.

The use of the phrase "and manner" in subdivision (d[2)
is intended to emphasize that the authorization is not to
conduct an adverse examination of an opposing witness.

In suMivision (e) the phrase "as substantive evidence" is
added to make clear that the deposition can be used as

evidence in chief as well as for purposes of impeachment.

SuMivision (e) also makes clear that the deposition cen

be used as affirmative evidence whenever the witness is

available but gives testimony inconsistent with that given

in the deposition. A California statute which contained a
similar oiovision was held constituLional in California v,

creen, dgg u.s. 149, 90 s.ct. 1930, 25 L.Ed.2d 489 (!9?0).

This is also consist€nt with section 80(dX1) of the Rules

of Evidence for United St"at€s Courts and Magistrates
(Nov.1971).

SuMivision (f) is intended to insure that a record of
objections and.the grounds for the objections is made at
the time the depoiition is taken when the witness is

available so that ihe witness can be examined further, if
nece$ary, on the point of the objection so that there will
be an adlquate record for the court's later ruling upon the
objection.

SuMivision (g) uses the "uggv4i@ility" deJinition of
the Rules of diidence for the-United States Crcurts and

Magistrates, 804(a) (Nov. 19?1).

Subdivision (h) is intended to make clear that the court
always has auihority to order the taking of a deposition,
or to allow the use of a deposition, where there is an

agreement of the parties to the taking or to the use'

NOTES OF COMMITTEE ON THE JUDICIARY'
HOUSE REFORT NO. 94-247

A. Amendments Proposed by the Supreme Court'
Rule 15 of the Federal Rules of Criminal Procedure pro
vides for the taking of depositions. The present rule
permits only the defdndant to move that a deposition of a
prospective-witness be taken. The court-may.grant the
inotion if it appears that (a) the prospective witness will
be unable to ii,tena or be prevented from attending the
trial, (b) the prospective witness' testimony is material,
and (c) the prospective witness'testimony is necessary to
prevent a failure of justice.

The Supreme Court promulgated several amendments

to Rule 15. The more significant amendments are describ'
ed below.

Sulxlivision (a) as proposcd to bc amended pcrmits ci-
thcr party to move th-e court for thc taking of a deposition
of a witness. Howcvcr, B p&rty may only move to take
the deposition of one of its bwn witnesses, not one of the
adversary party's witnesses.

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Complete Annotation Materials, see Title 18 U.S'C'A'

50



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AIIITAIGNMENT Rule 16

SuMivision (c) as proposcd to bc ame n<lcd provides that
whenever a deposition is taken at the instance of thc
government or of an indigent defendant, the expenses of
the taking of the deposition must be paid by the govern-
ment.

SuMivision (e) as proposed to be amended provides that
part or all of the deposition may be uscd at trial as

Eubstantive evidence if the witness is "unavailable" or if
the witness gives testimony inconsistent with his deposi-
tion.

SuMivision (b) I as proposed to be amended defines
"unavailable." "Unavailable" as a witness includes situa-
tio@

(l) is exempted by ruling of the judge on the ground
of privilege from testifying concerning the subject mat-
tcr of his deposition; or

(2) persists in refusing to testify concerning the suL
ject matter of his deposition despite an order of the
judge to do so; or

(3) testifies to a lack of memory of the subject mattcr
of his deposition; or

(4) is unable to be present or to testify at the hearing
because of death or then existing physical or mental
illness or infirmity; or

(5) is absent fipm the hearing and the proponent of
his deposition has been unable to procure his attendance
by prccess or other reasonable means. A deponent is
not-unavailable as a witness if his exemption, refusal,
claim of lack of memory, inability, or absence is due to
the procurement or wrongdoing of the proponent of his
dep,osition for the purpose of preventing the witness
from attending or testifying.
B. Committee Action. The Committee narrowcd the

definition of "unavailability" in subdivision (g). Thc Com'
mittee deleted language from that subdivision that provid-
ed that a witness was "unavailable" if the court exempts
him from testifying at the trial on the gtound of privilege.
The Committee does not want to encourage the use of
depositions at trial, especially in view of the importance of
having live testimony from a witness on the witness stand.

The Committee added a prtvision to suMivision (b) to
parallel the provision of Rule 43(bX2). This is to make it
ilear that a disruptive defendant may be removed from
the place where a deposition is being taken.

The Committee added language to subdivision (c) to
make clear that the government must pay for the cost of
the transcript of a deposition when the deposition is taken
at the instance of an indigent defendant or of the govern-
ment. In order to use a deposition at trial, it must be

transcribed. The proposed rule did not explicitly provide
for payment of the cost of transcribing, and the Commit-
tee change rectifies this.

The Committee notes that subdivision (e) permits the
use of s deposition when the witness "gives testimony at
the trial or hearing inconsistent with his deposition."
Since subdivision (e) refers to the rules of evidence, the
C,ommittee understands that the Federal Rules of Evi-
dence will govern the admissibility and use of the dcposi-
tion. The Committee, by adopting suMivision (e) as pro-
posed to be amended by the Supreme Court, intends the
Federal Rules of Evidence to govern the admissibility and
us€ of the deposition.

The Committce bclicves that Rulc l5 will not encourage
trials by deposition. A deposition may be taken only in
"exceptional circumstances" when "it is in the interest of
justice that the testimony of a prospective witness of a
party be taken and preserved. r r "'A deposition, once
it is taken, is not automatically admissible at trial, how-
ever. It may only be used at trial if the witness is
unavailable, and the rule narrowly defines unavailability.
The procedure established in Rule 15 is similar to the
procedure established by the Organized Crime Control Act
of 19?0 for the taking and use of depositions in organized
crime cases. See 18 U.S.C. 3503.

CONFERENCE COMMITTEE NOTES, HOUSE REFORT
NO.9'l-414

Rule 15 deals with the taking of depositions and the use
of depositions at trial. Rule 15(e) permits a deposition to
be used if the witness is unavailable. Rule 15(g) defines
that tcrm.

The Supreme Court's proposal defines five circumstanc-
es in which the witness will be considered unavailable.
The House version of the bill deletes a provision that said
a witness is unavailable if he is exempted at trial, on the
ground of privilege, from testifying about the subject
matter of his deposition. The Senate version of the bill by
crosg reference to the Federal Rules of Evidence, restores
the Supreme Court proposal.

The Conference adopts the Senate provision.

Rule 16. Discovery and Inspection
(a) Disclosure of Evidence by the Government.

(1) Information Subject to Diecloeure.
(A) Statement of Defendant. Upon request

of a defendant the government shall permit the
defendant to inspcct and copy or photograph:
any relevant writt€n or recorded statements
made by the defendant, or copies thereof, with-
in the possession, custody or control of the
government, the existence of which is known,
or by the exercise of due diligence may beeome
known, to the attorney for the government;
the substance of any oral statement which the
government intends to offer in evidence at the
trial made by the defendant whether before or
after arrest in response to interrogation by any

. person then known to the defendant to be a
government agent; and recorded testimony of
fhe defendant before a grand jury which re-
lates to the offense charged. Where the de-
fendant is a corporation, partnership, associa-
tion or labor union, the court may grant the
defendant, upon its motion, discovery of rele-
vant recorded testimony of any witness before
a grand jury who (1) was, at the time of his
testimony, so situated as an officer or employee
as to have becn able legally to bind the defend-
ant in respcct to conduct constituting the of'
fensc, or (2) was, at the time of thc offense,

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Complete Annotation