The opinion of the court was delivered by: Stengel, J.
The government has filed a motion (Document #69) seeking to videotape the deposition of Anna Glisson, an elderly and ill trial witness, which would be taken in Williamsburg, Virginia and then shown to the jury at trial. Defendant John P. Karoly has asked this court to deny the government's motion (Document #73). At a hearing in open court on Thursday, June 4, 2009, the government provided a letter from one of Ms. Glisson's treating physicians. Because the government has now shown that exceptional circumstances exist, the motion to preserve Mrs. Glisson's testimony by videotaping her deposition in Williamsburg will be granted. In order to present the videotaped deposition at trial, however, the government will need to demonstrate that Mrs. Glisson is unavailable under Fed.R.Evid. 804(a).
Fed. R. Crim. P. 15(a) provides that "A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice."
The rule distinguishes between civil depositions and their limited, disfavored use in criminal cases. Criminal depositions are not for discovery purposes, but only to preserve the testimony of a prospective trial witness who would be called by one's own party. United States v. Ismaili, 828 F.2d 153, 159 (3d Cir. 1987) (citing United States v. Cutler, 806 F.2d 933, 935 (9th Cir. 1986)). Under Rule 15, depositions in criminal cases require court authorization and the moving party bears the burden of demonstrating that it is necessary to preserve the prospective witness' deposition. See Id. (citing United States v. Adcock, 558 F.2d 397, 406 (8th Cir. 1977)).
The rule was amended in 1975 in two relevant ways. First, prior to 1975, the government was not permitted to request depositions in criminal cases. See Charles Alan Wright, 2 Fed. Practice & Procedure, § 241, 13, n. 17 (3d ed. 2000) (quoting F.R.Cr.P. 15 (1944)); Ismaili, 828 F.2d at 158-59.
Second, before 1975, this rule contained three explicit conditions that have now been replaced with "exceptional circumstances." These conditions were that "a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice." F.R.Cr.P. 15.
The cases interpreting Rule 15(a), both in this circuit and others, indicate that these conditions from the prior version of the rule remain factors in assessing whether "exceptional circumstances" exist. See, e.g., Ismaili, 828 F.2d at 159 ("Notwithstanding the 1975 amendment to Rule 15(a), it nevertheless has been established that when the district court exercises its discretion in ruling on a Rule 15(a) motion, considerations of materiality (of the testimony) and unavailability (of the witnesses) remain critical") (citing United States v. Johnson, 752 F.2d 206, 209 (6th Cir. 1985); United State v. Bello, 532 F.2d 422, 423 (5th Cir. 1976); United States v. Sun Myung Moon, 93 F.R.D. 558 (S.D.N.Y. 1982)).
Materiality and unavailability are not the only factors; the revised rule "emphasizes the use of discretion by the district court." Ismaili, 828 F.2d at 159.
The government suggests that Mrs. Glisson and her doctors are comfortable with her testimony being preserved by means of a videotaped deposition in an attorney's office near her home in Williamsburg, Virginia. The defendants contend that the requisite showing under F.R.Cr.P. 15 has not been made, but this court's review of the caselaw shows otherwise.
In 1992, another court in this district permitted the preservation of a witness' testimony because that witness had (1) material testimony, (2) a complicated pregnancy that required a surgical birth, and, (3) was located in Los Angeles. United States v. Coker, 1992 WL 59156, 1 (E.D. Pa. Mar. 18, 1992) (Waldman, J.). The government's motion to depose that witness was granted after the presentation of a letter from the witness' doctor. Id. The deposition was held in a courtroom and the defendants and their counsel were present and each had an opportunity to cross-examine the witness. Id.
In 2007, another court in this district granted the government's motion to depose witnesses who were outside the subpoena power of the United States and whose testimony was found to be material. United States v. Fleet Management, 2007 WL 2463364, 2 (E.D. Pa. Aug. 28, 2007) (Padova, J.). As in those cases, exceptional circumstances warrant the preservation of Mrs. Glisson's testimony: she is ...