A deposition—a witness's sworn, out-of-court testimony—is a common component in civil lawsuits everywhere; it also has a place in some criminal cases.
Different Purposes of Civil and Criminal Depositions
The purpose of a deposition is to allow the lawyers to find out what a witness knows about the case and to preserve that witness’s testimony for trial. In a civil case, depositions and other “discovery” tools (such as asking for documents and for admissions of key facts) are common and enable each side to realistically evaluate the strengths of their positions. Ideally, this knowledge will lead them to settle the case. Depositions in criminal cases serve different goals.
The vast majority of states allow criminal depositions only when a judge has concluded that there’s a good chance that an important witness will be unable to testify at trial. Only a handful of states allow depositions in criminal cases without the prior approval of a judge. Criminal depositions are also referred to as conditional examinations in some states.
How Criminal Depositions Work
Lawyers take depositions during the pretrial discovery period—the time when prosecutors and defendants gather information about the other side’s case. In most states and in federal court, the party seeking to depose (question) a witness must file a motion with the trial court, explaining why a good reason exists for taking the witness’s deposition (see below for an explanation of what constitutes “good reason”).
If the trial court grants the motion, the prosecutor and defense attorney take the sworn testimony of the witness outside of court and with no judge present. The lawyers ask the witness the same types of questions they would pose during the trial. A court reporter writes down what the witness says and later produces a transcript of the deposition for use in court. If the party asking for the deposition decides to introduce it, the clerk reads the transcript aloud in open court.
The defendant has a federal constitutional right to be present during a deposition. The defendant may waive this right and might do so when the deposition takes place in another state or foreign country. Defendants who are not physically present at a deposition can still participate via live video streaming. Both the prosecution and the defense may depose witnesses; however, defendants cannot be deposed prior to trial without their consent because of the Fifth Amendment privilege against self-incrimination.
When Criminal Depositions Are Allowed
In most states, the defense attorney or the prosecutor must convince the judge that a good reason exists for granting the request for a deposition. The lawyers must convince the court that:
- the witness is likely to be unavailable for trial, and
- the witness’s testimony is material to the case.
Unavailable Witness
When it comes to trial witnesses, the term "unavailable" means more than someone will be out of town. Being unavailable refers to conditions or circumstances that affect the witness's ability or willingness to testify at trial.
State and federal laws guide judges as they decide whether a witness is likely to be unavailable to testify at trial. The issues that judges consider include:
- the witness’s health (is the witness sick or infirm?)
- the witness’s age (is the witness 65 years of age or older?)
- the witness’s residency (is the witness about to leave the state or country?)
- the witness’s safety (has the witness’s life or well-being been threatened?), and
- the witness’s custody status (is the witness about to be imprisoned, released from custody, or deported?)
Courts also consider the nature of the charges when evaluating a witness’s potential unavailability. For example, a judge might allow a prosecutor to depose a domestic violence victim when there is reason to believe the defendant will use his relationship with the victim to persuade her not to testify at trial. Along the same lines, a witness to a gang-related crime might be exposed to intimidation in a gang-dominated neighborhood, which could result in the witness’ refusal to appear at trial.
How to Evaluate Witness Unavailability
Here’s an example of when a judge might consider granting a prosecutor’s motion for a deposition or conditional exam. Karen is charged with felony theft from an elder. The victim is her 86-year-old aunt who has heart disease. The prosecutor asks for a deposition based on the victim’s old age and poor health. The judge allows the deposition because there’s reason to believe that the victim’s memory could decline before trial due to her age, or she might die or become too ill to testify. The judge is also concerned about the victim’s close relationship with the defendant, fearing that the defendant might prevail on the witness to change her story or recant. The judge wants to preserve her testimony while she is cooperating with the prosecution of her niece.
Using Criminal Depositions as Evidence
Before allowing deposition transcripts to be introduced as evidence, judges require the lawyer who is offering the deposition transcript to make a good faith effort to get the witness to appear in court. Courts have a strong preference for live testimony at trial over deposition transcripts because, in order to evaluate that person’s believability, the judge or jury should see the witness’s behavior (demeanor) while testifying. If the judge concludes that the witness is truly unavailable, the lawyer substitutes the witness’s deposition testimony for live testimony at trial.
The rules of evidence apply to depositions. The lawyer objecting to deposition testimony typically states the grounds for the objection during the deposition, when the witness is available for further questioning. But because a judge is not present at the deposition, the objections are simply preserved for the record. The trial judge rules on the lawyers’ objections later, before trial. When the clerk reads the deposition to the judge or jury, the judge tells the jurors to treat that testimony exactly the same as live testimony.
Using Criminal Depositions to Discredit Witnesses
We’ve been discussing how lawyers use deposition testimony as a substitute for live testimony when a deposed witness is unavailable for trial. But what happens when the witness becomes available for trial? Can a deposition that’s already been taken be used for another purpose?
The answer is yes but only in a relatively rare situation. When the previously deposed witness testifies in court, if that testimony is different from the answers given in the deposition, the other side can point out this discrepancy to the jury. Challenging the live testimony by comparing it to earlier sworn statements is known as “impeaching” the witness. The lawyer will argue to the jury that the witness’s live testimony should not be believed because the story has changed.
Learn More and Get Help
For everything you've ever wanted to know about preparing for a deposition get Nolo’s Deposition Handbook, by Albert Moore and Paul Bergman. And, if you need more personal help, consult with an experienced criminal lawyer.