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The Second Circuit has held that witnesses may testify through CCTV where the government satisfies the standard for taking a deposition under Rule 15. Thus, the standard governing the alternative requests to take live testimony by CCTV or a deposition was and remains identical. The defendant must show that there are exceptional circumstances and that such a course would be in the interest of justice. This standard is met where the "testimony is material to the case and . . . the witness is unavailable to appear at trial." To satisfy the materiality requirement, the moving party must make some showing that the proposed testimony exculpates or, in the event that the government is the moving party, inculpates, the defendant.
Defendant Sulaiman Abu Ghayth, a spokesman for Usama bin Laden and al Qaeda in the wake of the September 11, 2001 attacks on the World Trade Center and the Pentagon, was arrested abroad by U.S. authorities in 2013. During trial, he moved to take the testimony of Khalid Sheikh Mohammed ("KSM"), who was detained as an enemy combatant at Guantanamo Bay, via live, closed circuit television ("CCTV") or, in the alternative, that his testimony be preserved through deposition pursuant to Rule 15 of the Federal Rules of Criminal Procedure. Defendant argued that KSM could provide material, exculpatory evidence. The court denied the motion. Defendant moved to renew and reargue.
Should the court grant defendant’s motion to take KSM’s testimony via CCTV, or in the alternative, to have KSM’s testimony be preserved through deposition?
The court noted that witnesses may testify through CCTV where the defendant has shown that there were exceptional circumstances and that such a course would be in the interest of justice. The standard would be met if the testimony was material to the case and the witness was unavailable to appear at trial. In this case, the court held that the proposed testimony would not have been material to the case. Moreover, the court averred that defendant’s application was untimely since he had ample opportunity going back many months to ascertain the content of any testimony that KSM might have been prepared to give. The court also held that the district court need not grant a motion under Rule 15 that was made after unexcused delay or on the eve of the trial. Such motions must be made promptly and certainly were denied properly where the depositions sought would delay the trial.