FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Wolphagen, 21 FSM R. 272 (Pon. 2017)

[21 FSM R. 273]

1) there must be exceptional circumstances, 2) it must be in the interest of justice, and 3) it must be the party's own prospective witness whose testimony is to be preserved for use at trial. FSM v. Wolphagen, 21 FSM R. 272, 274 (Pon. 2017).

Criminal Law and Procedure – Depositions

A movant seeking to take a deposition in a criminal case has the burden of showing whether exceptional circumstances exist. What must be shown is that the witness is unavailable to attend the trial, that the witness's testimony would be material, and that such testimony would be for the moving party's benefit or in some other way in the interest of justice. FSM v. Wolphagen, 21 FSM R. 272, 275 (Pon. 2017).

Criminal Law and Procedure – Depositions

Depositions may be taken in criminal cases only by order of court, and then only in exceptional situations. FSM v. Wolphagen, 21 FSM R. 272, 275 (Pon. 2017).

Criminal Law and Procedure – Depositions

When no motion to take depositions was filed, the absence of the required evidence of exceptional circumstances – that the witnesses are unavailable, as defined under FSM Evidence Rule 804(a), to testify at trial; that these witnesses' testimony is material; and that their testimony is for the defendant's benefit or in the interest of justice, means the depositions are inadmissible for trial or any hearing. Thus, a motion for the waiver of deposition fees for the depositions that were taken will be denied. FSM v. Wolphagen, 21 FSM R. 272, 275-76 (Pon. 2017).

COURT'S OPINION

DENNIS K. YAMASE, Chief Justice:

I. BACKGROUND

On May 9, 2017, the defendant, David Wolphagen (herein "Wolphagen"), filed a Motion for Waiver of Deposition Fees.¹ No response was entered by the plaintiff, the Federated States of Micronesia (herein the "Government"). After a review of the motion and applicable laws, the motion is denied.

II. FACTS

On February 1, 2016, the deposition of Iolani Irons was taken by the defendant in this matter. The depositions of Ricky Falcam, Rosthain Remengesau, and Melihda Santos were taken on March 2, 2017. On March 20, 2017, the deposition of Hilario Bermanis Jr. was also taken.

Multiple billings for the recording, appearance, and transcripts of the deposed witnesses were sent to the defendant, totaling $465.45. Def.'s Mot. for Waiver of Deposition Fees at 2. The pending motion entered on May 9, 2017 seeks to waive the payment of these fees pursuant to FSM Criminal Rule 15(c). The Government did not respond to the defendant's motion.

[21 FSM R. 274]

Failure to oppose a motion is generally deemed a consent to the motion, but even when there is no opposition, the court still needs good grounds before it can grant the motion. Senda v. Mid-Pacific Constr. Co., 6 FSM R. 440, 442 (App. 1994); Kelly v. Lee, 11 FSM R. 116, 117 (Chk. 2002); Fan Kay Man v. Fananu Mun. Gov't, 12 FSM R. 492, 495 (Chk. 2004).

III. DISCUSSION

The defendant enters the pending motion pursuant to FSM Criminal Rule 15(c), which states:

Payment of Expenses. Whenever a deposition is taken at the instance of the government, or whenever a deposition is taken at the instance of a defendant who is unable to bear the expenses of the taking of the deposition, the court may direct that the expense of travel and subsistence of the defendant and the defendant's attorney for attendance at the examination and the cost of the transcript of the deposition shall be paid by the government.

However, before the court can order a party to bear the expenses for depositions, the court, in exceptional circumstances in the interest of justice, may order that depositions be taken, pursuant to FSM Criminal Rule 15(a). ²

There are major differences between the rules for depositions in civil cases and Rule 15 which authorizes in exceptional circumstances depositions in criminal cases. In civil litigation, depositions may be taken as a matter of right at the instance of any party and may be for discovery or to obtain evidence. Under Rule 15, however, depositions may be taken in a criminal case only upon court order and are not for discovery of information but only to preserve evidence. 2 CHARLES ALAN WRIGHT & PETER J. HENNING, FEDERAL PRACTICE AND PROCEDURE § 242 (4th ed. 2009). ³

There are three elements a party in a criminal case seeking to take a deposition must satisfy: (1) there must be exceptional circumstances, (2) it must be in the interest of justice, and (3) it must be the party's own prospective witness whose testimony is to be preserved for use at trial. The movant has the burden of showing whether exceptional circumstances exist. What must be shown is that the witness is unavailable to attend the trial, that the witness's testimony would be material, and that such testimony would be for the moving party's benefit or in some other way in the interest of justice. Wolfe v. FSM, 2 FSM R. 115, 122 (App. 1985); FSM v. Wainit, 13 FSM R. 301, 304 (Chk. 2005).

[21 FSM R. 275]

Here, no motion to take depositions was filed by Wolphagen, therefore, no Order by the court was ever issued allowing the depositions to take place. Depositions may be taken in criminal cases only by order of court, and then only in exceptional situations. United States v. Kelley, 36 F.3d 1118, 1124-25 (D.C. Cir. 1994).

Because no motion was filed, there is no evidence of exceptional circumstances, that the witnesses are unavailable to testify at trial, that the testimony of these witnesses is material, and that the testimony is for the defendant's benefit or in the interest of justice, as required in Wolfe.

FSM Criminal Rule 15(e) governs the use of depositions at trial or any hearing if the witness is unavailable. Specifically, this rule states:

Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable, as unavailability is defined in Rule 804(a) of the FSM Rules of Evidence, or the witness gives testimony at the trial or hearing inconsistent with that witness' deposition.

Any deposition may also 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 that party to offer all of it which is relevant to the part offered and any party may offer other parts.

(emphasis added).

In the present matter, the depositions are inadmissible for trial or any hearing because the defendant has not shown that the deposed witnesses are unavailable, as defined under FSM Evidence Rule 804(a). ⁴ Accordingly, the depositions in this matter are inadmissible and may not be used at trial or in any subsequent hearings.

[21 FSM R. 276]

IV. CONCLUSION

The defendant's Motion for Waiver of Deposition Fees is HEREBY DENIED. The depositions are deemed inadmissible and may not be used at trial or during any subsequent hearings in this matter.

Footnotes:

¹ The motion shows the case number as Criminal Action No. 2016-538, however, the correct case number is 2016-536.

² FSM Criminal Rule 15(a):

³ The primary purpose of Rule 15(e) is to safeguard the confrontation rights of the criminally accused by limiting the use of deposition testimony to narrowly defined situations of unavailability. People ex rel. Faulk v. Dist. Court of Eleventh Judicial Dist., 667 P.2d 1384, 1390 (Colo. 1983).

⁴ FSM Evidence Rule 804(a):

Definition of unavailability. "Unavailability as witness" includes situations in which the declarant--

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement;

(2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of his statement; or

(4) is unable to be present or to 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 his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.