Criminal Law

Criminal Depositions: Preserving Witness Testimony

Whether it's a criminal or civil case, depositions may be taken before a trial. A deposition is a statement made under oath in response to an oral examination or written questions. The statement is recorded by an authorized officer, such as a court reporter. The intention of taking depositions in a criminal case is usually different than a civil case.

In civil cases, depositions are normally taken to discover information that's relevant to the case. In criminal cases, depositions are normally taken to preserve testimony from a witness. A deposition isn't meant as a discovery device in a criminal case.

Reasons to Allow Depositions in a Criminal Case

Courts vary as to what specific reasons allow depositions to be taken in a criminal case in order to preserve testimony. However, most courts allow a witness to be deposed if there are exceptional circumstances and it's in the interest of justice.

The circumstances of each particular case must be examined to determine whether a deposition is needed. The decision is within the discretion of the court. One factor the court examines is whether the testimony is material to the case. This means that it could affect the result of the case.

It's usually in the interest of justice to allow a deposition if the witness won't be available for trial and the testimony is relevant to the main issue in the case. The deposition preserves the testimony to be used for trial.

Unavailability of Witnesses

In order to allow a deposition, a court will usually consider whether there's a strong likelihood that the witness won't be available to testify at trial. Some reasons that a witness might not be available for trial include:

  • The witness lives in a foreign country
  • The witness is too old or ill
  • The witness is in prison
  • The witness is a fugitive from justice
  • The witness refuses to testify

Proof that the witness won't be available for trial is not required by the court. However, it's a major factor that the court considers when deciding whether to grant the deposition.

Taking a Criminal Deposition

Reasonable notice of a deposition's date and location must be given to all parties of a criminal case. The court decides what's reasonable notice under the circumstances of each particular case. It may change the deposition's date or location if there's good cause.

A criminal deposition is taken and filed in the same manner as a civil deposition. However, there are a few key differences:

  • A defendant can't be deposed without his consent
  • The scope and manner of the examination and the cross-examination must be the same as would be allowed during trial
  • The government must give the defendant any statement from the witness that's being deposed that he would be entitled to at trial

The defendant has the right to confront any witnesses against him. He can cross-examine the witness the same as he would be allowed during trial. If the defendant voluntarily chooses to not attend the deposition and cross-examine the witness, he waives his right to confront the witness if the deposition is allowed at trial.

Use of Depositions at Trial

A deposition may be used at a criminal trial if the witness is unavailable to testify. If the witness is unavailable as a result of wrongdoing on the part of the individual trying to use the deposition, the court won't allow the deposition. Many courts require a good faith effort to obtain the witness's presence at trial before allowing a deposition.

The court will also allow the admission of a deposition if the witness gives inconsistent testimony at trial. The deposition can be used for the purpose of impeaching the trial testimony. To impeach means to challenge the credibility of the witness and his testimony.

Questions for Your Attorney

  • If I am worried that a witness for my defense may flee the state because he has been charged with a crime in another case, will the court allow me to depose him in case he does flee?
  • If a witness for my defense lives in Mexico, can I have him deposed over the phone? If not, can I go to Mexico and depose him there?
  • Can I use a deposition at trial if a witness for my defense doesn't want to testify at trial? Can I force a witness that's testifying against me to appear at trial instead of using his deposition?
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