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Daily Journal - Mar 8, 2006
Pretrial Discovery Won't Harm Justice System

Forum Column

By Dana Cephas
        A recent ruling by a 9th U.S. Circuit Court of Appeals panel - concluding that criminal defendants do not have the right to conduct a discovery deposition of prosecution witnesses - ensures that federal courts and fair trials will continue to be mutually exclusive concepts.
        The case of U.S. v. Fei Ye, 2006 DJDAR 1440 (Feb. 3), arose from a District Court order granting a defense motion for pretrial depositions of several expert witnesses whom the government intends to call at trial. The U.S. attorney's office brought an interlocutory appeal to overturn the order granting the depositions, arguing that depositions would be inconsistent with the Federal Rules of Criminal Procedure and the Jencks Act.
        The defendants in Ye are charged with having possessed stolen trade secrets with the intent to benefit the People's Republic of China. The witnesses whom the defendants sought to depose are employees of the alleged victims, four American technology companies.
        At the District Court level, counsel for at least one of the defendants acknowledged that he sought to use the depositions for discovery purposes. Specifically, he admitted wanting depositions to obtain information on "what exactly is being alleged to be the trade secret and why it is a trade secret in advance of trial." The government opposed the motion arguing that the prospective deponents "will be available at trial."
        The District Court had granted the defendants' motion, reasoning among other things that "the fairness and efficiency of the trial process" amounted to exceptional circumstances under Rule 15. However, the three-judge 9th Circuit panel reversed, explaining that "[w]hile the district court's belief that it would be more convenient and efficient to allow pretrial depositions may be well founded, Rule 15 makes no exception for convenience and efficiency." The appellate court reasoned that Rule 15 depositions are essentially only permitted to "preserve" testimony where a witness might not be available at trial.
        The 9th Circuit's conclusion, that "Rule 15 depositions are not allowed merely for discovery purposes," is not supported by the plain language of the rule. While it is true that Rule 15(a) concerns situations where there is a need "to preserve testimony," subsection (h) has no such limitation.
        Specifically, Rule 15(h) provides that "[t]he parties may by agreement take and use a deposition with the court's consent." If subsection (h) were limited to situations for preserving testimony, the rule would be redundant because it simply would mirror what Rule 15(a) already provides ("A party may move that a prospective witness be deposed in order to preserve testimony for trial"). As the Supreme Court stressed in Gustafson v. Alloyd Co. Inc., 513 U.S. 561 (1995), "the [c]ourt will avoid a reading which renders some words altogether redundant."
        Moreover, the 1974 Advisory Committee Notes to Rule 15 explain that "[s]ubdivision (h) is intended to make clear that the court always has authority to order the taking of a deposition, or allow the use of a deposition, where there is an agreement of the parties to the taking or to the use." There is no suggestion that a court's "authority to order the taking of a deposition" was in any way proscribed if the parties intended to use such deposition for discovery purposes.
        The Ye court's suggestion that no appellate court has recognized an exception permitting discovery depositions in a criminal case is also incorrect. For example, in U.S. v. Carrigan, 804 F.2d 599 (1986), the 10th Circuit concluded that "the district court has the power in extraordinary circumstances to permit the taking of an opposition witness' deposition" for discovery purposes.
        Most important, the 9th Circuit's conclusion that the government "will suffer harm" if defendants are permitted pretrial discovery is not supported by logic or evidence. In light of the fact that a civil defendant has an almost unfettered right to depose a civil plaintiff's witnesses before trial, it seems illogical to argue that the same discovery in a criminal case would cause "harm that is not correctable on appeal." That conclusion can be supported only if the goal of our federal criminal "justice" system is to secure quick convictions, rather than provide fair trials.
        The notion that depositions will somehow preclude the "fair" prosecution of criminal defendants is further belied by the fact that many states allow criminal defendants to take discovery depositions. State statutes permitting criminal discovery depositions include Texas Code of Criminal Procedure Article 39.02, Florida Rule of Criminal Procedure 3.220, Iowa Rules of Criminal Procedure Section 2.13, Missouri Rules of Criminal Procedure 25.12, Nebraska Revised Statutes Section 29-1917, Vermont Rules of Criminal Procedure 15, North Dakota Rules of Criminal Procedure 15 and New Hampshire Revised Statutes Section 517:13.
        Other states permit discovery depositions only in certain situations. For example, Illinois Supreme Court Rule 416(e) provides that a "party may take a discovery deposition" in capital cases. No one can argue that prisons in Texas or Illinois have been emptied because criminal defendants' in those states have the right to take discovery depositions. Thus, it was wrong for the Ye court to claim that the federal government's pursuit of "justice" will be impaired if Rule 15 is interpreted to permit discovery depositions.
        In addition to the Rule 15 implications, preventing a defendant from taking discovery depositions in a criminal case violates a defendants' Due Process Clause and Confrontation Clause rights because "[a] fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133 (1955).
        Moreover, the "right of cross examination ... is implicit in the constitutional right of confrontation, and helps assure the accuracy of the truth-determining process." Chambers v. Mississippi, 410 U.S. 284 (1973). In Berger v. California, 393 U.S. 314 (1969), the Supreme Court explained that "one of the important objects of the right of confrontation was to guarantee that the fact finder had an adequate opportunity to assess the credibility of witnesses."
        Allowing the government to present witnesses at trial without providing the defense a pretrial opportunity to investigate the claims such witnesses might make violates due process because it precludes the defense from effectively utilizing cross-examination in order to assist the fact finder.
        Witnesses with an agenda - for example, the employees of an American company that claims to have had its trade secrets stolen by a Chinese competitor - can lie with impunity or at least stretch the truth when the defense has no prior opportunity to investigate the claims of those biased individuals. It is no wonder that so many people have been wrongly convicted despite appellate courts having claimed that those people had "fair" trials. Any experienced civil litigator can tell you that depositions (and subsequent investigations to check the truth of deposition testimony) routinely allow civil defendants to prove witness testimony is false.
        Confrontation Clause rights are almost meaningless in many federal criminal cases where trial-by-ambush is encouraged by the Rules of Criminal Procedure. For example, with the exception of death-penalty cases, federal prosecutors are not required to reveal the names of their witnesses until the day of trial and are allowed to present those witnesses without having produced any statements summarizing what those witnesses might say. Thus, precluding discovery depositions will help protect the prosecutor's monopoly on potential trial testimony.
        "In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant facts." Dennis v. U.S., 384 U.S. 855 (1966). But the decision in Ye ensures that result.
        Rather than reverse the District Court, the Ye court should have found that the Federal Rules of Criminal Procedure do not preclude discovery depositions, or that the rules violate a criminal defendant's Due Process Clause and Confrontation Clause rights. Instead, the court went with form over substance and maintained the status quo. That decision also guarantees that an unknown number of defendants will be wrongly convicted because their attorneys will be unable to cross-examine mistaken or lying witnesses effectively.
        In the post 9/11 competition to look the toughest on crime, no politician will run for office promising to change the Federal Rules of Criminal Procedure in order to provide a criminal defendant with a fair trial. But some day, and it could take 100 years, law-school professors may talk about the legal dark ages when innocent defendants were convicted routinely because they were not permitted to discover what their accusers would say until those people actually testified during the trial.
        Until then, trial by ambush will continue to be standard operating procedure in federal criminal trials.
        Dana Cephas, a former deputy federal public defender, practices employment law and criminal defense at the Cephas Law Firm in Century City.