Deposition

What is a deposition in a criminal case?

In federal criminal cases, a deposition is testimony taken from a prospective witness before trial so that it is preserved for use at trial. Under Federal Rule of Criminal Procedure 15, a party asks the court for one. The court may grant the motion because of exceptional circumstances and in the interest of justice. This definition explains that federal rule, not state deposition procedures. [3]

What law does this definition rely on?

This definition explains the testimony-preservation procedure in Federal Rule of Criminal Procedure 15. Rule 1 states the federal courts in which these criminal procedure rules govern. This is an explanation of the supplied federal rules, not a survey of deposition procedures in other states. [1][3]

Federal Rule 15 defines the deposition by its purpose: preserving a prospective witness's testimony for trial. The rule also sets an important limit on who can be questioned, because a defendant may not be deposed without the defendant's consent. [3]

How does a deposition come up in a federal case, and who decides?

In federal court, the judge decides. The usual route begins with a party's motion. The court may grant the motion because of exceptional circumstances and in the interest of justice. When it orders a deposition, the court may also require the witness to bring designated material that is not privileged. [3]

Rule 15 separately allows a witness detained under the statute it identifies to request a deposition by written motion and notice to the parties. The court may order it and may discharge the witness after the witness signs the transcript under oath. The parties may also agree to take and use a deposition with the court's consent. Those provisions are distinct from a party's exceptional-circumstances motion. [3]

The party seeking a deposition must give every other party reasonable written notice of its date and location. Subject to Rule 15(c)(3)'s separate procedure for a witness outside the United States, the custodial officer must produce a defendant in custody and keep the defendant in the witness's presence. The rule permits a written waiver or exclusion for persistent disruptive conduct after the court's warning. [3]

A narrower exception covers witnesses outside the United States. That kind of deposition may go forward without the defendant present only if the court makes case-specific findings on every listed factor. One required finding is that the defendant can meaningfully participate through reasonable means. [3]

Federal Rule 17 provides for a subpoena commanding a witness to attend and testify. An order to take a deposition authorizes the clerk in the district where it will be taken to issue a subpoena. After considering the convenience of the witness and the parties, the court may order the witness to appear anywhere it designates. [4]

Does a deposition replace a witness's testimony at trial?

Not automatically. Federal Rule 26 requires that trial testimony be taken in open court, unless a statute or certain rules provide otherwise. Rule 15 adds that an order allowing a deposition does not determine its admissibility, meaning whether it can be used as evidence. [2][3]

Rule 15 allows use of all or part of a deposition as provided by the Federal Rules of Evidence. Under Evidence Rule 804(b)(1), former testimony from a lawful deposition can meet a hearsay exception when the declarant is unavailable and the party against whom it is offered had an opportunity and similar motive to develop it through questioning. This describes that evidence rule; it does not resolve every objection to using testimony in a particular case. [3][5]

Absence alone does not establish unavailability under Rule 804. Its criteria include specified privileges, refusal despite a court order, lack of memory, death or qualifying illness, and absence despite the required efforts to obtain attendance or testimony. Its unavailability provision does not apply when the proponent procured or wrongfully caused the absence intending to prevent attendance or testimony. [5]

Rule 15 requires the scope and manner of examination and cross-examination to match what would be allowed at trial. Objections must state their grounds during the deposition. The government must provide statements of the deponent in its possession to which the defense would be entitled at trial. The Sixth Amendment separately states the accused's right to confront adverse witnesses. This definition is not an assessment of a particular witness's testimony. [3][6][7]

Can a defendant be required to give a deposition in a federal criminal case?

No, not without agreeing to it. Federal Rule 15 says that a defendant may not be deposed without that defendant's consent. The rule otherwise directs that federal criminal depositions be taken in the same manner as civil depositions, but this consent requirement is one of its stated exceptions. [3]

What happens if a defendant who is not in custody does not attend?

Subject to Rule 15(c)(3)'s separate procedure for a witness outside the United States, a defendant not in custody has the right, on request, to attend the deposition under conditions the court imposes. If the government tenders expenses as Rule 15(d) provides but the defendant fails to appear, then, absent good cause, the defendant waives the right to appear and any objection to the deposition's taking or use based on that right. [3]

Who pays for a deposition the government requests?

In federal court, when the government requested the deposition, the court may order the government to pay certain costs. If the defendant is unable to bear the deposition expenses, the court must order it. Those costs are the reasonable travel and subsistence expenses of the defendant and defense attorney to attend, plus the cost of the transcript. [3]