AE 15 Prosecution Response to Defense Motion to Compel Depositions.pdf

7/28/2019 AE 15 Prosecution Response to Defense Motion to Compel Depositions.pdf

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Nne f the cases are factual n pint, in that nne f them deal with a depsitin beingrequsted apar m a request to repen Article 32, and all of them invlve deteinatnsregading ssential witnesses. Unlike the abve cases, the defense requestd depositionwtnesss re not ssential t the case at r, they do have exigences that revent them m

being readly available, their credibility s nt n issue in that their classicaton deteinatinscnt be qestned in curt so the in-persn testmny is not necessry, and the defenseaready has the substce f the testimny in sw dclatins.

The defnse-cited cases r cnceptually n pint in that all use a balancing test tdeteine whether r nt the witness shuld have prduced fr in-persn testimny. In the caseat bar, the balance weighs against in-person testimny fr all the defense requested depsitin

witnesss.

The following s a fact specic analysis f why the IO's deteinatins regadngavalablity and relevanc were prper.

1. The Investigatin Ocer's Denial of CPT Kolky as Irrelevant wasProper

a. I0 Deteinatin

The IO made detaled ndings as t why he deteined CPT Kolky's testimny was notrelevant to th nvestigaton n the follwing written detenaton:

his expected testimony is nt relevant t the form f the charges, the truthf the chges, r informatin as may be necessary t me an informedrecmmendatin as t dispsitin; specically, whether tee Apache gunvideos that were sent t his Dvisin wer nt classed at the time f theiralleged release and whether thy should have been, recgnizing that thegveent states the vide s nt classed an des not allge t sclassied, s nt relevant to a determnaton as to whether PFC Mannncmmitted the charged offnses and f so, what the dispostin of thsechargs shuld be

Enclsure 34.

b. Value f Testmny

The defense failed t state y facts that make CPT Klky's testimny relevant. Thedefense proered CPT Klky's testimny as pertainin t his classicaton review" f theApache videos; spcically, that the Apache vides were nt classed, but CPT Kolky thught

they should have been. Enclsure 3. The Apache vid was nt classed, nd the prsecutindoes nt allege therwise d did nt allege therwise at the time f the icle 32 CPTKolky's tstmon n the subject, therefr, wold address n fact at ssue. Frthermre, CPTKlky is nt d never was OCA wh culd oer relevant tstimny as t why the OCA

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AE 15 Prosecution Response to Defense Motion to Compel Depositions.pdf

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Transcript of AE 15 Prosecution Response to Defense Motion to Compel Depositions.pdf