Did Jordan Chandler make a DEPOSITION?

Each time I hear that Jordan Chandler made a “deposition” on December 28, 1993 the word makes me wince – the statement made in the name of Jordan Chander was surely NOT a deposition. Let us see what it was and ask a few questions about it in this connection:

• Was it a deposition?
• If not, what was it?
• Was the document authentic?

I won’t pretend that I have full answers to all the above questions but the major part of  the  information is already available to me – so let me share with you what I know for sure now.

WAS IT A DEPOSITION?

To be able to answer the first question we need to know what document a deposition is. Legal encyclopedia (please be patient, this is serious business and top important too) says: http://www.answers.com/topic/deposition

A deposition is the testimony of a party or witness in a civil or criminal proceeding taken before trial, usually in an attorney’s office.

Deposition testimony is taken orally, with an attorney asking questions and the deponent (the individual being questioned) answering while a court reporter or tape recorder (or sometimes both) records the testimony. Deposition testimony is generally taken under oath, and the court reporter and the deponent often sign affidavits attesting to the accuracy of the subsequent printed transcript.

Depositions are a discovery tool – discovery is the process of assembling the testimonial and documentary evidence in a case before trial. Other forms of discovery include interrogatories (written questions that are provided to a party and require written answers) and requests for production of documents.

Depositions are commonly used in civil litigation (suits for money damages or equitable relief); they are not commonly used in criminal proceedings (actions by a government entity seeking fines or imprisonment).

The deposition, because it is taken with counsel present and under oath, becomes a significant evidentiary document. If the case goes to trial, the deposition can be used to impeach (challenge) a party or witness who gives contradictory testimony on the witness stand.

Let us sum up a few things before we go on:

• Depositions can be used both in civil and criminal procedures, though in civil suits they are used more often (in Michael’s a criminal investigation was going alongside a civil suit, so it could be both) and are usually taken in an attorney’s office (this is important, please make a note of it)

• The court reporter is to certify that the printed transcript is correct. This is done in a separate affidavit paper which is missing in Jordan’s case, but which we saw earlier as a complete must accompanying all documents of the same kind. Thus even simple declarations (not depositions!) of Tom Sneddon and Ray Chandler always had an affidavit from a court reporter attesting the accuracy of the text (see the documents disclosed in connection with Ray Chandler’s subpoena) .

• The legal value of a deposition is so high that it can be used in court to represent a witness there or to challenge the testimony of another witness who is giving his testimony ‘live’. So if Jordan had ever given a deposition it could have been used in court, which it wasn’t (because there was none).

But the most interesting points about a deposition are the details of its procedure:

In cases pending in United States federal courts, depositions are carried out under Rule 30 of the Federal Rules of Civil Procedure.

Prior to taking a deposition, the court reporter administers the same oath or affirmation that the deponent would take if the testimony were being given in court in front of a judge and jury.

To ensure an accurate record of statements made during a deposition, a court reporter is present and typically transcribes the deposition with stenographic equipment.

Thereafter, the court reporter makes a verbatim stenographic record of all that is said during the deposition, in the same manner that witness testimony is recorded in court.

Depending upon the amount in controversy and the ability of the witness to appear at trial, audio or video recordings of the deposition are sometimes taken as well (as it was done with Michael in his Mexico deposition concerning the authorship of his songs).

The examining attorney begins the deposition and may ask the deponent a wide variety of questions. After the examining attorney’s questions are completed, the attorney representing the adverse party in the litigation is permitted to ask follow-up questions to clarify or emphasize the deponent’s testimony.

The attorney who has ordered the deposition questions the deponent  in a so-called “direct examination” (or “direct” for short). Since nods and gestures cannot be recorded, the witness is instructed to answer all questions aloud. After the direct examination, other attorneys in attendance cross-examine the witness. The first attorney may ask more questions at the end, in re-direct, which may be followed by re-cross.

During the course of the deposition, one attorney or another may object to questions asked.

Under the California Civil Discovery Act as enacted in 1957 and heavily revised in 1986, most objections must be given on the record at the deposition or they are permanently waived.

As with oral examination at trial, depositions can become heated at times, with some attorneys asking harassing questions to provoke witnesses into losing their tempers, some witnesses giving evasive answers, and everyone using foul language. In extreme situations, one side or the other may ask the reporter to mark the record, then may suspend the deposition, demand a rush transcript, and file an emergency motion to compel a response, for a protective order, or for sanctions. Some courts have magistrates or discovery commissioners who are on call for such contingencies.

Under FRCP 30(d)(1) and its state counterparts, a deposition normally must take place for no longer than seven hours on one day, unless otherwise stipulated by the parties or ordered by the court. California is the major exception, in that it has no default time limit; depositions can theoretically proceed indefinitely, or at least until the deposition becomes so obviously excessive and burdensome that the deponent is able to move for and obtain a protective order.

After the deposition, the transcript is then published in the form of a hardcopy booklet, which is provided to the deponent as well as to any party to the suit who wishes to purchase a copy.

The booklet will have the case caption (the name of the court, case number, and names of the parties) on the front. Inside, the pages have line numbers along the left margin, so that the parties can precisely cite testimony by page and line in later court documents. Timestamps are inserted into the margin if a videorecording is being made (see Michael’s deposition in Mexico).

The chief value of obtaining a deposition, as with any discovery proceeding, is to give all litigant parties in a contested case a fair preview of the evidence. The process provides a “level playing field” of information among the litigants and avoids surprises at trial (traditionally regarded as an unfair tactic).

Another benefit of taking depositions is to preserve a witness’s recollection while it is still fresh, since the trial may still be months or years away. When a witness’s testimony in open court is inconsistent with that given at deposition, a party can introduce the deposition to impeach (or contradict) the witness.

In the event a witness is unavailable for trial (usually because they are deceased, seriously ill, or live hundreds of miles away), their deposition may be read or played before the jury and made part of the record in the case, with the same legal force as live testimony. In some states, stenographic, audio, or video records of depositions can be offered into evidence even if the witness is available.

Now that we’ve read the details let us make some more conclusions:

• One of the ideas of a deposition is to ‘preserve a witness recollection while it is still fresh’, so taking a deposition (as well as making a declaration) on December 28, 1993 or three and a half months after the civil suit was filed by Larry Feldman on September 14, 1993,  is ridiculous in the very least.

• A deposition is to be attended by the attorneys from both sides so that they are able to cross-examine a witness in the same way it is done in court. In case of Jordan’s declaration no attorney representing Michael was present, so any cross-examination was completely out of the question. Actually Johnnie Cochran made it a point that no deposition from Jordan was ever taken – see Lisa Campbell’s book “King of Pop’s Darkest Hour” published in 1994, p. 183: “In a taped interview, Johnnie Cochran stated there was never a deposition taken from the boy”.  And we don’t even need Lisa’s testimony to this effect because everyone knows that Jordan’s declaration came quite unexpected for Michael’s side – which means that none of his people were present there.

• 

  Declaration of J.Chandler

• After the deposition is taken a verbatim tapescript is made to record every word of a witness as if he was giving his testimony in court (in a question/answer form). Depositions do not allow any summaries made by a lawyer the way it is done in Jordan’s declaration but should record everything – up to witness’s nod (in the form of a “yes” answer). Jordan’s declaration does not even remotely resemble the above type of a document – it is surely not a transcript (as you see from the picture) and each of its paragraphs is worded by a lawyer as declarations are drawn up by lawyers and are only signed by the declarant.

• A copy of the deposition transcript should be given to the attorney of the defendant. Over here the Chandlers’ side even outdid themselves as not only did they evidently give it to Michael’s attorney back in 1993 but leaked the document to the whole world on the eve of the 2005 trial to bias public opinion and the jury against him.

• However it may be interesting to apply the above requirement (to provide a copy) to the so-called Linden affidavit. You remember that it was made in autumn 1993 and served as the basis for the strip search and, according to Lisa Campbell’s book, a copy of it was never given to Jackson’s side in full – they only showed them some pieces with the major parts being blocked out. A thing like that might happen only if Linden’s affidavit was no deposition either – otherwise the attorneys should have been present and a copy of it should have been provided as a complete must for the other side.

• Let me repeat it here that the legal force of a deposition is the same as that of a live testimony – which means that if Jordan had ever given it they wouldn’t have needed him in court. Which in its turn is proof of the fact that there was never a deposition taken from him.

• Why not? This would be a highly intriguing question to ask later, but even at this stage it is clear that the Chandlers didn’t want the attorneys from the other side to be present at the deposition and Jordan avoided to answer questions from Michael’s side.

If any of you are still in doubt and are still tempted to call Jordan’s declaration a ‘deposition’, please listen to Ray Chandler complaining to Larry King in an interview that the family “was not asked to testify all through the year 1993” and that is why they “could no longer wait and decided to settle”.

If we are to believe Ray Chandler that Jordan Chandler never gave a testimony during the year 1993 this will make our job even easier as there is no need to prove anything at all now:

KING: Why did they settle?
CHANDLER: Why did they settle?
KING: Why did they settle?
CHANDLER: Oh. Well, you know, the allegations became public in August of ’93. The district attorney never filed a charge or never intended to file a charge. The family was not asked to testify all through the year of ’93. A lawsuit was filed — they got civil lawyers. The civil lawyers said you cannot wait. We don’t know if the DA is going to file, if the DA isn’t going to file…

Source: http://edition.cnn.com/TRANSCRIPTS/0311/25/lkl.00.html

NOooooooo!

So what was our first question?

WAS IT A DEPOSITION?

And what is the answer?

NOOOOOO, IT WASN’T!

Let us see what answers we can get to the remaining two questions…

(to be continued in due time)