After Crawford, Confrontation Clause requirements satisfied under deposition process which allowed cross-examination during deposition of unavailable trial witness providing testimonial statements, in United States v. Cannon, 539 F.3d 601 (7th Cir. Aug. 20, 2008) (No. 06-3461)
FED. R. CRIM. P. 15 provides the process for taking depositions to preserve testimony for a criminal trial, upon a showing of “exceptional circumstances and in the interest of justice.” FED. R. CRIM. P. 15(a)(1). After a controlled buy with an undercover agent, defendant Cannon and his brother were arrested. The recording system failed to record the transaction. A DEA agent, who observed part of the transaction, was deployed to Iraq before trial. Under Rule 15, his deposition was videotaped for trial. During the deposition, the defendant was present and defense counsel cross-examined the agent. After his conviction, for the first time, the defendant claimed the playing of the videotaped deposition at trial violated his Confrontation Clause rights.
The circuit reviewed the issue for plain error, since no objection was lodged at trial and no error was found. The circuit had not considered after Crawford v. Washington, 541 U.S. 36 (2004) whether a Rule 15 deposition comported with the Confrontation Clause. Prior to Crawford, the circuit had held that a Rule 15 deposition did not violate the Confrontation Clause. See United States v. Donaldson, 978 F.2d 381, 392-93 (7th Cir. 1992) (Rule 15 videotape deposition of bank teller, who was seriously ill during trial after delivering a child, did not violated Confrontation Clause); United States v. Kehm, 799 F.2d 354, 360-61 (7th Cir. 1986) (Rule 15 deposition of Bahaman attorney did not violate the Confrontation Clause). The circuit held, “we see no reason, post-Crawford, to question the constitutionality of admitting fully cross-examined testimony preserved by a properly conducted Rule 15 deposition.” Cannon, 539 F.3d at 604.
Cannon confirms, after Crawford, that Rule 15 depositions may be admitted without violating the Confrontation Clause.
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