The case of the day is United States v. Hayat (E.D. Cal. 2017). In 2005, the government indicted Hamid Hayat for providing material support to terrorists and lying to the FBI. A jury found him guilty. He was sentenced to more than 20 years in prison. The Ninth Circuit affirmed the judgment in 2013, and Hayat brought a collateral attack on his sentence, arguing ineffective assistance of counsel. The claim was that Hayat’s trial lawyer failed to investigate alibi witnesses.
The question in today’s case was whether to grant Hayat’s motion to take the deposition by videoconference of the alibi witnesses, who were in Pakistan and could not obtain visas to come to the United States. I only want to address one aspect of the decision, which was the government’s attempt to raise an issue about the oath to be administered in Pakistan. The court noted (presumably because the government cited it) a case involving testimony to be taken in Somalia before a Somali magistrate, which held:
There is no showing that an oath in Somali has the same meaning as an oath in this country (or one subject to the Hague convention). There is no showing that an oath in Somalia is subject to penalties of perjury and judicial process like those available in the United States.
The court ultimately deferred decision on any challenge to the oath administered in connection with these depositions, but I thought it worth commenting on the issue of oaths in general in foreign depositions. Here are some points to consider:
- These depositions were for use in criminal trials. Now, I am not a criminal lawyer, and I have no special expertise in the Federal Rules of Criminal Procedure, but I note that FRCrP 15(e) provides that depositions are to be “taken and filed in the same manner as a deposition in a civil action,” with limited exceptions not relevant here. So it seems likely to me that whatever the issue about oaths may be in a criminal action should be the same as in a civil action.
- In civil actions, FRCP 28(b) provides that a deposition should be taken in a foreign country either under an applicable convention, under a letter rogatory, before a person authorized by federal law or the law of the place of the examination to administer oaths, or before a person commissioned by the court to administer any necessary oath and to take the testimony.
- So assuming the parties were not interested in proceeding via a letter rogatory, the court could simply have commissioned someone (a Pakistani lawyer or some other appropriate person already in Pakistan, say, since apparently the government believed it would be too dangerous for anyone to travel to Pakistan) to administer the oath. This is the traditional common law way of doing things.
- But what about the content of the oath, or the penalties for its violation? Here I have to say the government’s suggestion of an objection seems weak. The law of evidence imposes only very weak requirements on the content of the oath. Under FRE 603: “Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.” That’s it. The rule does not say that untruthful testimony needs to be punishable by law for the oath or affirmation to be valid.