7/28/2019 AE 15 Prosecution Response to Defense Motion to Compel
Depositions.pdf
10/18
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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