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herself. The SCM authenticates each copy of the
record by signing them.
If the sentence ordered executed includes
confinement on bread and water or diminished
rations, the medical certificate is attached to the
original copy of the record of trial.
DISTRIBUTION
The SCM will cause a copy of the record of trial
to be served on the accused as soon as it is
authenticated. The SCM also causes the accused’s
receipt for the copy of the record of trial to be
obtained and attaches to the original record of trial or
attaches to the original record of trial a certificate that
the accused was served with a copy of the record. If
the record of trial was not served on the accused
personally, the SCM attaches a statement explaining
how and when such service was accomplished. If the
accused was represented by counsel, that counsel may
be served with the record of trial.
FORWARDING
may be taken by agreement of the parties without
necessity of an order.
A deposition may be taken to preserve the
testimony of a witness who is likely to be unavailable
at the investigation or at the time of trial. Part or all of
a deposition may be used on the merits or on an
interlocutory question as substantive evidence if the
witness is unavailable. A deposition may be admitted
in a capital case only upon offer by the defense. In
any case, a deposition may be used by any party for
the purpose of contradicting or impeaching 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 the proponent to offer all
that is relevant to the part offered, and any party may
offer other parts.
A deposition that is transcribed is ordinarily read
to the court-martial by the party offering it. The
transcript of a deposition may not be inspected by the
members. Objections may be made to testimony in a
written deposition in the same way that they would be
if the testimony were offered through the personal
appearance of a witness.
The original and one copy of the record of trial are
sent to the CA for action.
TYPES OF DEPOSITIONS
DEPOSITIONS
A deposition may be ordered whenever, after
preferral of charges, due to exceptional circumstances
of the case, it is in the interest of justice that the
testimony of a prospective witness be taken and
preserved for use at an Article 32 investigation or a
court-martial.
A CA who has the charges for
disposition or, after referral, the CA or the military
judge may order that a deposition be taken on request
of a party.
A deposition is the out-of-court testimony of a
witness under oath in response to questions by the
parties that is reduced to writing or recorded on
videotape or audiotape or similar material. A
deposition taken on oral examination is an oral
deposition, and a deposition taken on written
interrogatories is a written deposition.
Written
interrogatories are questions, prepared by the
prosecution, defense, or both, that are reduced to
writing before submission to a witness whose
testimony is to be taken by deposition. The answers,
reduced to writing and properly sworn to, constitute
the deposition testimony of the witness. A deposition
There are two types of depositions—written and
oral. A written deposition consists of a document that
sets forth a series of written questions prepared by
counsel.
These are called interrogatories and
cross-interrogatories.
The other part of the document
consists of the answers of the deponent (the person
who testifies) that were given orally in the presence of
the deposition officer and sworn to.
A written deposition may be used against an
accused only when the accused is present at the taking
of the deposition or when the accused expressly
waives his or her right to be present. The
Interrogatories and Deposition, DD Form 456
(fig. 3-5), illustrates a completed written deposition.
An oral deposition consists of a document that
sets forth questions asked personally of the deponent
by counsel and the deponent’s answers. This
questions and answers session is accomplished in the
presence of the deposition officer, counsel for the
accused and the government, the accused, and a
reporter.
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