By Elliott L. Epstein, Esquire
Rule 15 of the Federal Rules of Criminal Procedure permits the deposition of a party’s prospective witness to be taken and preserved for trial whenever it is in “the interest of super justice” due to “the exceptional circumstances of the case.” At trial, part or all of the deposition transcript may be used in place of live testimony if the witness is “unavailable” within the meaning of Federal Rule of Evidence 804(a), or to impeach or contradict the testimony of the deponent if he becomes a witness at trial.
Attorneys accustomed to the freewheeling use of depositions in civil cases in federal and state courts in Maine may be surprised by the severe restrictions imposed upon their use in U.S. District Court. Criminal depositions, unlike their civil counterparts, have only one purpose – preservation of the testimony of a witness who is likely to be unavailable for trial. They are not permitted for discovery. Moreover, because of the constitutional right of confrontation accorded defendants under the Sixth Amendment, the use of any substitute for live courtroom testimony, including depositions, is suspect. As a consequence, both Rule 15 and case law require a party, especially a prosecutor, who offers such evidence, to justify not only the taking of the deposition, but its use at trial. On the other hand, a prosecutor who fails to provide the defendant a reasonable opportunity to take the deposition of a favorable material defense witness who will be unavailable for trial may run afoul of another Sixth Amendment right – the right to compulsory process.
The purpose of this article is to discuss the implications of Rule 15 and the Sixth Amendment in situations where the material witness is unavailable for trial due to his departure from the United States, particularly as a result of deportation under the immigration laws.
THE CONFRONTATION CLAUSE
The Sixth Amendment of the Constitution of the United States gives a criminal defendant the right to be confronted with the witnesses against him. The “Confrontation Clause,” which essentially requires live trial testimony in the presence of the defendant, is generally justified on the basis of three rationales:
first, the witness testifies under oath and under penalty of perjury;
second, the defendant’s attorney has the opportunity to cross-examine the witness; and
third, the finder of fact can observe the witness’ demeanor as an aid to ascertaining credibility.
An affidavit might satisfy the first rationale and a pretrial hearing or deposition transcript the first and second. Only live trial testimony, however, can satisfy all three. Even the replay at trial of a videotaped deposition cannot fully capture the gestures, the facial expressions or the body language that constitute important elements of the demeanor of a witness.
Pretrial testimony may, nonetheless, be used by the government in lieu of live trial testimony where the witness is “unavailable” within the meaning of Federal Rule of Evidence 804, and the defense has had both the opportunity and incentive to cross-examine the witness in a trial-like setting. The unavailability requirement of Rule 804 has been held to be stringent enough to satisfy the Confrontation Clause. “Unavailability,” however, does not only mean that the witness is absent from the jurisdiction and not susceptible to the subpoena power. It also means that the proponent of the testimony has not improperly procured the witness’ absence, and that he has made a good faith effort to produce him at trial.
PRETRIAL HEARINGS AND THE CONFRONTATION CLAUSE
In the United States Supreme Court case of Barber v. Page, the prosecution had read the pretrial transcript of a state’s witness’ testimony at trial, claiming that the witness was unavailable to testify because he had been incarcerated in a federal penitentiary. The Supreme Court reversed a conviction based upon his testimony, because the state had made no effort, let alone a good faith effort, to secure the witness’ attendance at trial. The state could have, among other things, sought issuance of a writ of habeas corpus ad testificandum, a state writ which would have been honored under the existing policy of the Federal Bureau of Prisons. Moreover, the Barber court held that the defense had not possessed the incentive to fully cross-examine the witness at the pretrial hearing, because it was not on notice at the time of the hearing that the witness would not be called at trial, and because “[a] preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial.”
In the case of U.S. v. Acevedo-Ramos, by contrast, the First Circuit Court of Appeals held that the videotaped deposition of a witness imprisoned in another state at the time of trial could be utilized where the incarcerating state had refused to release the witness even in response to a writ of habeas corpus ad testificandum obtained by the prosecution.
DEPOSITIONS AND THE CONFRONTATION CLAUSE
The government’s use of testimony obtained at a deposition, rather than at a preliminary hearing, obviates a major obstacle to the admission of pretrial testimony by placing the defendant on notice that the deposition will likely be used in lieu of live testimony at trial. The very purpose of the deposition – to preserve testimony for trial – alerts the defense to this possibility. So do the provisions of Rule 15, which require the production of an incarcerated defendant at the deposition, limit the scope and manner of examination to that which would be allowed at trial and mandate the parties to raise all objections as to the admissibility of testimony at the time of the deposition in order to preserve them for trial.
The deposition, in short, takes place in a trial-like setting, and the defendant has every incentive, as well as every opportunity, to fully cross-examine the witness. It is unlikely that the voluntary absence of a defense attorney from a deposition, or his failure to fully cross-examine the deponent, would allow him to later complain that his client had been deprived of the right of confrontation. The one exception to this rule might occur if the government, at the time of the deposition, had charged the defendant with fewer or different crimes than those charged at the time of trial, thus depriving the defense of the motive to cross-examine with respect to the subsequently charged offenses.
THE “UNAVAILABILITY” STANDARD
Even though it provides the opportunity and incentive for cross-examination, a deposition cannot satisfy the dictates of Rule 15 and the Confrontation Clause if the government has conducted it for the primary purpose of making a witness unavailable at trial, has improperly procured the witness’ absence at trial or has failed to take “all reasonable steps to bring to trial a witness whose testimony [it] chooses to present.”
In a key First Circuit decision, U.S. v. Mann, the government deposed a foreign national juvenile whom it had released from prison and against whom it had dismissed criminal charges in a drug case. After the juvenile’s deposition, the government returned her plane tickets and passport, both of which had been seized at the time of her arrest, knowing she would use them to leave the country and return home. Prior to trial, the prosecution cabled the American consulate in the juvenile’s home country, asking the consul to request the juvenile to return for trial. The cable, however, added: “It is expected that she will decline, but the [Assistant U.S. Attorney] needs proof of her unavailability so her statement can be introduced at trial.” The juvenile refused the government’s request to return for trial, and the defendant was convicted.
The First Circuit reversed the conviction, which was based upon the use of the juvenile’s deposition transcript at trial, holding that the “prime reason for the deposition was the impermissible one of clearing the way for this critical witness to leave the court’s jurisdiction.” Moreover, the Court held, the government had failed to take reasonable steps to secure her attendance at trial, such as placing her in some form of lesser custody, supplying maintenance in the United States, retaining her passport and tickets or placing her under subpoena. The government had even failed to extract from her a promise to return for trial, so that “one could almost deduce that the government’s sole interest was to obtain a deposition and let the future take care of itself.” There was no indication of any personal hardship requiring the witness to be out of the country, and whatever hardship would have resulted from her continued detention was outweighed by the fact that “for one who had been voluntarily travelling all over the world, a further short absence from the bosom of her family could not be rated a calamity.”
In its decision, the First Circuit made clear that the language of Rule 804(a)(5) required “other reasonable means” besides subpoenas “to be tried before a witness can be found unavailable” and that this “relatively high good faith standard cannot be satisfied by perfunctory efforts.” The danger of accepting lesser efforts, the Court stated, was that it might “sanction the government’s procuring of depositions of witnesses, especially shaky witnesses, but then discourage attempts to bring the witness to trial so long as the government is satisfied with what is in the transcript.”
While there is some case law that suggest a prosecutor need not attempt to locate and obtain the return of a witness from a foreign jurisdiction if it is obvious the effort would be futile, a prudent prosecutor should at least make the effort.
If at all possible, of course, the witness should be prevented from leaving the jurisdiction in the first place, but this is easier said than done. A prosecutor may, under 18 U.S.C. Ã‚Â§ 3144, apply to the court for permission to place a material witness in custody pending trial “if it may become impracticable to secure the presence of the person by subpoena.”
However, Ã‚Â§ 3144 also provides that a witness cannot be kept under lock and key if his testimony “can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.” Once released, particularly if he is a foreign national, the witness may flee the jurisdiction and never return.
There are circumstances, moreover, where the government’s obligation to enforce other laws may weigh in favor of releasing a material witness from custody or even causing his departure from the jurisdiction before trial. This situation often arises in immigration and drug trafficking cases, where courts have held that the Immigration and Naturalization Service’s duty to enforce the immigration laws and the financial and physical burden of detaining large numbers of aliens for substantial periods usually justifies speedily deporting or allowing the voluntary departure of illegal aliens who are prosecution witnesses. Even if the government does release a witness, and deports him or permits him to leave the country, however, it should undertake every effort, ranging from formal extradition, to a request for the witness’ voluntary return, to secure his presence at trial.
THE COMPULSORY PROCESS CLAUSE
While the Mann court was concerned that an unscrupulous prosecutor might prefer the use of the deposition to the live testimony of a shaky prosecution witness, other courts have worried that the prosecution might permit, encourage or even compel the absence from the jurisdiction of a material defense witness, thus placing him beyond the reach of the defendant’s subpoena power. Defendants have complained that such a practice violates their right under the Sixth Amendment to have “compulsory process for obtaining witnesses in their favor,” as well as their Fifth Amendment right to due process. Again, this situation often occurs in criminal prosecutions where the witnesses are illegal aliens being deported by the Immigration and Naturalization Service. For many years, there was a split of authority on whether and under what circumstances to impose sanctions against the government for deporting a potential defense witness. In 1982, the United States Supreme Court resolved that split in U.S. v. Valenzuela-Bernal. The implications of that case suggest an enlarged role for depositions in preserving the testimony of material defense witnesses who are about to be deported.
In Valenzuela-Bernal, the Supreme Court held that:
the responsibility of the Executive Branch faithfully to execute the immigration policy adopted by Congress justifies the prompt deportation of illegal-alien witnesses upon the Executive’s good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution. The mere fact that the government deports such witnesses is not sufficient to establish a violation.
The ruling in Valenzuela-Bernal, in effect, permits the government to carry out deportations with such dispatch that the defendant might not have the opportunity to interview, let alone preserve, the testimony of material defense witnesses. In order to obtain a dismissal of the government’s case based upon the unavailability of such witnesses, the defendant has to demonstrate prejudice by making “a plausible showing that the testimony of the deported witnesses, would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.” As the Court pointed out, however, “a defendant who has not had an opportunity to interview a witness may face a difficult task in making a showing of materiality.”
Difficult the task may be, but not impossible. In those cases where the government deports a witness possessing information which may be material and favorable to the defendant, it risks dismissal of its case should the defense be able to make the requisite showing of prejudice. In such instances, the prosecution probably could avoid the imposition of sanctions by notifying the defendant in advance of the deportation and giving him a reasonable opportunity to preserve the testimony of the witness through deposition. If the defendant then failed to act diligently to depose the witness, he would likely be held to have waived his compulsory process and due process rights and be unable to claim any subsequent prejudice flowing from the witness’ unavailability for trial.
In essence, the position of the government under the Compulsory Process Clause is the opposite of its position under the Confrontation Clause. If the government acts too zealously under the latter to secure and use the deposition of its own witnesses at trial, it may compromise its case by failing to satisfy the “unavailability” standard of Rule 804(a). If, however, it does not act zealously enough to facilitate the deposition of material defense witnesses facing deportation, it risks bringing about the same result under the Compulsory Process Clause.
Depositions in a criminal case must be used sparingly and not as a discovery device. They should be taken only when the departure of a material witness prior to trial appears certain, his return is improbable and a subpoena or alternative methods of securing his attendance at trial are unlikely to prove effective.
After the deposition of a government witness has been conducted, due diligence should be used by the prosecution in an effort to secure the witness’ attendance at trial. The government should also give the defendant a reasonable opportunity to depose a witness material and favorable to the defense who is unlikely to be available for trial.
The prosecution must be particularly careful in taking and use of depositions, since any prosecutorial conduct which smacks of bad faith or lack of due diligence, or causes demonstrable prejudice to the defendant may result in Sixth Amendment violations leading to the exclusion of the deposition evidence at trial, a dismissal of the government’s case, or a reversal on appeal.
 Fed R. Crim. P. Rule 15(a) requires a motion by the party seeking the deposition, notice to other parties and a court order. The deposition itself, once authorized, must be preceded by reasonable written notice to every party of the time and place it is to be conducted. Rule 15(b).
 Fed R. Crim. P. 15(e). Rule 804(a) defines unavailability as follows: Unavailability as a witness includes situations in which the declarant – (1) is exempted by ruling of the court on ground of privilege from testifying concerning the subject matter of the declarant’s statement; or (2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarant’s statement; or (4) is unable to be present or testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means. A Declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability or absence is due to the procurement of wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
Fed. R. Crim. P. 804(a).
 Fed R. Crim. P. 15(c).
 Similar restrictions are also imposed upon depositions in state courts in Maine by Rule 15 of the Maine Rules of Criminal Procedure, which permits the taking of a deposition if “it appears that a prospective witness may be unable to attend or is prevented from attending a trial or hearing, that the witness’ testimony is material and that it is necessary to take the witness’ deposition in order to prevent a failure of justice. . . .”
A discussion of Maine Rule 15 is beyond the scope of this article for three reasons. First, the state rule is more specific than the federal rule with respect to the use of depositions at trial. Maine Rule 15(c) permits the use of deposition testimony at trial if a “witness is out of the State of Maine” or “the party offering the deposition has been unable to procure the attendance of the witness by subpoena.” The provision obviates most of the controversy generated by Federal Rule 15(c)’s utilization of the term “unavailability.” Second, the State of Maine, unlike the federal government, has neither nationwide subpoena power nor the authority to negotiate extradition treaties with foreign countries. It must rely on interstate cooperation and the use of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 15 M.R.S.A. Ã‚Â§Ã‚Â§ 1411-1415 (1980). Thus, its responsibility for securing the attendance of witnesses who are outside the court’s jurisdiction is, of necessity, far less than that of the federal government. Finally, state government, unlike the federal government, plays no role in enforcing the immigration laws, and, thus, will not have occasion to make a witness “unavailable” by deporting him.
This is not to say that Maine Rule 15 poses no constitutional difficulties in its application. State courts must still be sensitive to a defendant’s Sixth Amendment rights under the United States Constitution, as well as his rights under Article I, Section 6 of the Constitution of Maine, when ruling on the admissibility of deposition testimony at trial. See Cluchey and Seitzinger, Maine Criminal Practice, Ã‚Â§ 15.2 n.6 & Ã‚Â§ 15.4 (1989).
Another issue which is beyond the scope of this article is whether depositions taken in one criminal case may be used in the trial of another case. While there appear to be no federal cases on point, Maine law clearly prohibits this practice. State v. Warner, 237 A.2d 150, 1267-68 (Me. 1967).
 Fed. R. Crim. P. 30.
 U.S. v. Cutler, 806 F.2d 933, 935-35 (9th Cir. 1986); U.S. v. Steele, 685 F.2d 793, 809 (3rd Cir. 1982), cert. denied, 459 U.S. 908, 103 S. Ct. 213 (1982).
 Although most of the discussion in this article pertains to the prosecution, the requirements of Rule 15 apply to both the government and the defendant. Indeed, when Rule 15 was originally adopted, it only permitted criminal defendants to take depositions. The Rule was amended in 1975 to allow the government to do so as well. See U.S. v. Rivera, 859 F.2d 1204, 1209 (4th Cir. 1988).
 “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI.
 California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935 (1970).
 Mattox v. U.S., 156 U.S. 237, 242-43, 15 S. Ct. 337, 339 (1895). “The primary object of the constitutional provision question was to prevent depositions or ex-parte affidavits, . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”
 U.S. v. Kehm, 799 F.2d 354, 360 (7th Cir. 1986).
 Fed. R. Evid. 804(a).
 U.S. v. Mann, 590 F.2d 354, 360 (7th Cir. 1986).
 390 U.S. 719, 77 S. Ct. 1318 (1968).
 390 U.S. 2d 723-25.
 Id. at 724.
 Id. at 725.
 842 F.2d 5 (1st Cir. 1988).
 Id. at 8.
 Fed. R. Crim. P. 15(b).
 Fed. R. Crim. P. 15(d).
 Fed. R. Crim. P. 15(f).
 See, e.g., State v. Mastropetre, 400 A.2d 276, 281 (Conn. 1978).
 The author was defense counsel in the case of U.S. v. En Fu Wu, in the U.S. District Court, District of Maine, Docket No. 89-0018-K. The government initially charged the defendant with harboring five illegal aliens. Plaintiff deposed the illegal aliens, then indicted the defendant on an additional four counts of transporting illegal aliens and one count of conspiracy. The indictment was issued after the depositions and shortly before the aliens were released and permitted by the government to leave the country. The defense moved for exclusion of the depositions and, in the alternative, for dismissal of the additional charges on the grounds it had not had the incentive to cross-examine the deponents with respect to the additional charges. The Court never reached the issue, since it excluded the depositions based on the government’s failure to make a good faith attempt to return the witnesses for trial.
 U.S. v. Mann, 590 F.2d at 366.
 590 F.2d at 366.
 Id. at 366.
 Id. at 367. The Fourth Circuit apparently does not share this view. In U.S. v. Rivera, 859 F.2d at 1208-09, the Court decided that deported aliens were “unavailable” as witnesses at trial where their depositions had been properly taken pursuant to 18 U.S.C. Ã‚Â§ 3144 and Rule 15, where they “were entitled to release and their testimony could be and was adequately secured by deposition.” The Court dismissed the defendant’s suggestions as to how the presence of illegal aliens could have been assured at trial as “unrealistic and totally lacking in merit.” In U.S. v. Guadian-Salazar, 824 F.2d 344 (5th Cir. 1987), on the other hand, the Fifth Circuit reversed the conviction of a defendant who was convicted based on deposition testimony taken under a standing rule of the district court that alien witnesses be deposed and released within sixty (60) days of their deposition.
 U.S. v. Kehm, 799 F.2d 354, 360-61 (7th Cir. 1986).
 U.S. v. Valenzuela-Bernal, 458 U.S. 858, 102 S. Ct. 3440 (1982); U.S. v. Rivera, 859 F.2d at 1206-09. No doubt, the financial and physical burden of detaining illegal aliens pending their appearance at trial is the more compelling reason for their speedy deportation. There is no law mandating prompt deportation, and, while the INS may allow immediate voluntary departure from the country, 8 U.S.C. Ã‚Â§ 1252(b) & 8 C.F.R. 242.5(a)(2)(i) (1982), it is prohibited from doing so with respect to aliens who are needed as witnesses in any criminal case which is pending or under investigation unless the appropriate prosecuting authority consents to their departure. See 8 C.F.R. Ã‚Â§Ã‚Â§ 215.2(a), 215.3(g) (1989); 22 C.F.R. Ã‚Â§Ã‚Â§ 46.2(a), 46.3(g) (1989). See also, U.S. v. Guadian-Salazar, 824 F.2d at 348.
 In U.S. v. Tsutagawa, 500 F.2d 420, 423 (9th Cir. 1974), the Ninth Circuit worried about “the basic unfairness of allowing the government to determine which witnesses will not help either side and then to release those witnesses, for all practical purposes, beyond the reach of the defendant.”
In U.S. v. Calzada, 579 F.2d 1358, 1362 (7th Cir. 1978), cert. denied, 439 U.S. 920, 99 S. Ct. 294 (1978), the court was concerned that “no defendant could ever be able to show with any degree of assuredness what a [deported] witness whom he has never interviewed might say on his behalf, making it impossible to demonstrate prejudice.”
 Compare U.S. v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), U.S. v. Tsutagawa, 500 F.2d 420 (9th Cir. 1974), and U.S. v. Calzada, 579 F.2d 1358 (7th Cir. 1978), cert. denied, 439 U.S. 920, 99 S. Ct. 294 (1978), making dismissal automatic where the government deports a witness without giving the defense a reasonable opportunity to interview him, with U.S. v. Avila-Dominguez, 610 F.2d 1266 (5th Cir. 1980), requiring a showing of prejudice resulting from a witness’ availability.
 458 U.S. 858, 102 S. Ct. 3440 (1982).
 U.S. v. Valenzuela-Bernal, 458 U.S. at 872-72. See also U.S. v. Guadian-Salazar, 824 F.2d 344 (5th Cir. 1987); U.S. v. Rose, 669 F.2d 23 (1st Cir. 1982); U.S. v. Schaefer, 709 F.2d 1383 (11th Cir. 1983).
 See U.S. v. Valenzuela-Bernal, 458 U.S. at 863-66.
 Id. at 873.
 Id. at 871.
 Such a procedure was suggested with respect to witness interviews in U.S. v. Avila-Dominguez, 610 F.2d at 1269, and in Justice O’Connor’s concurring opinion in U.S. v. Valenzuela-Bernal, 458 U.S. at 875-79.