Page 90 - ACTL Journal Win24

DEPOSITIONS IN FEDERAL
CRIMINAL CASES?
TIME TO REVISIT THE RULE
89 JOURNAL
INDULGE ME.
I have this recurring nightmare. I represent a client who is charged in a federal criminal case with fraudulent solici- tation of investors. It’s a wire fraud case. He is facing ten years under the sentencing guidelines.
The indictment tracks the language of the statute but does not particularize what the alleged false statements were. My request for a bill of particulars was denied. I have deposed none of the witnesses because the rules don’t permit it. I have interviewed none of the witnesses because they won’t speak with me. They fear provoking the ire of the government. My client tearfully denies his guilt.
The trial starts. The prosecutors present a smooth case. They have prepared their witnesses in dozens of prep sessions. They have spoken to them in private and know exactly what they will say. I have been allowed discovery of notes of those conversations from agents who were present, but they contain only what the agents chose to write down. In the last several prep sessions no notes at all were taken. Those few witnesses who refused to speak with the prosecu- tor voluntarily were subpoenaed to the grand jury, at which I could not be present nor submit questions. I do have transcripts of that grand jury testimony for trial witnesses, though I got them only days before trial. The transcripts aren’t all that helpful because the questions were designed to elicit information helpful only to the prosecution.
At trial, my client and I are assaulted with a slew of new allegations I have never heard before. I am left to blindly cross-examine. I can’t risk my client’s liberty on questions to which I do not know the answer, so I must limit my cross to questions where (1) the witness’s answer is locked in based on documents, (2) logic compels only one an- swer, or (3) I have a logical plan of action regardless of the answer given. I call no witnesses. I can’t take the risk of calling them blind. I do my best but it feels like I have one hand – sometimes both hands – tied behind my back. I hammer the presumption of innocence and the reasonable doubt standard. It is not enough. My client is convicted.
I wake-up in a cold sweat. I fall back to fitful sleep.