Unit 4: Selection and Crime Scene Process

Depositions

The court may permit the defendant to take a deposition in a criminal case upon finding by a preponderance of the evidence that such deposition is necessary to preserve the testimony of any witness or to ensure a fair trial, avoid surprise or for other good cause shown. Before granting a right to depose a witness, the court is to consider the complexity of issues involved, other opportunities or information available to discover the information, or any other special or exceptional circumstances. In a felony case, both sides may take discovery depositions of any expert witness who may be called by the other party to testify at trial.

In a deposition, the defendant’s attorney questions the witness under oath and the questions and answers are recorded. A transcript of proceeding is prepared and the witness is given an opportunity to review it and correct any errors. Thereafter, the witness again swears under oath that the statements are true and accurate to the best of his belief.

The purpose of discovery deposition is to determine precisely what the police officer saw, heard and did in connection with the criminal case. The police officer should prepare for a deposition in the same way he would prepare for a trial. It is important that an officer meet with the prosecutor before the deposition and review all the reports that he has written as well as the reports in which he is mentioned. The same rules that apply to testifying at trial apply at depositions except with regard to objections. Because there is no judge present, there is no one to determine whether a question is appropriate. Usually, all objections are preserved except as to the form of the question and the trial judge will determine whether information is admissible at a later time. If an objection is made during the deposition, the officer should pause to permit the attorneys to make whatever statements are necessary on the record, and then answer the question if the prosecutor directs.