Knowing how to best attack the prosecution’s case is a vital skill for any defense attorney. As discussed previously in this blog, there are two broad types of evidence. Typically, the state will produce either physical evidence or testimonial evidence at trial. Both physical evidence and testimonial evidence are equally important, and it is up to either the judge or jury to determine the weight placed upon either type of evidence. There are several cases in which the state lacks any type of physical evidence and is relying solely on the testimony of eyewitnesses. In these situations, depositions can be incredibly important for the defense.
When a criminal case gets filed, the state must turn over all the evidence it intends to use at trial to the defense. This is called the discovery process. Once a defense attorney can see all the evidence that the state possesses, a strategy can begin to form about how to proceed with the best defense. In cases where the state is relying solely on testimony, the credibility of eyewitnesses is significant. The first point at which an eyewitnesses’ credibility can be challenged is at a deposition.
A deposition is a statement given by a witness under oath. The witness will take the same oath as they would when testifying at trial on the witness stand. Just like at trial, the witness will promise to tell the truth under penalty of perjury. Usually, a deposition is conducted in a conference room with only the defense attorney, the prosecutor, a court reporter, and the witness present. This is the first, and aside from trial often the only opportunity for the defense attorney to question the witness. At a deposition, the defense attorney will get a sneak preview of how the witness will come across on the witness stand. If the state’s case is predicated only on eyewitness testimony, this is a key opportunity for the defense attorney to begin to attack the credibility of the witness.
When considering a witness’s credibility, the judge or jury may consider:
- The witness’s ability and opportunity to observe the event;
- The behavior of the witness while testifying;
- Any interest, bias or prejudice the witness may have;
- Any relationship with people involved in the case;
- The reasonableness of the testimony considering the other evidence;
- Knowledge, common sense, and life experiences.
It is at a deposition when these factors can fully be explored by the defense attorney. The types of questions allowed at depositions are far broader than the questions permissible at trial. A deposition is an opportunity for the defense attorney to wholly learn the contents of the witness’ testimony, as well as the demeanor of the witness. If properly done, a deposition can unearth information that would otherwise be unknown and can drastically affect the strength of the prosecution’s case. Likewise, after assessing a witness’ demeanor, a good defense attorney will understand the best approach as to how to question that witness at trial.
If you are facing criminal charges, it is crucial to have an experienced attorney that has conducted hundreds of depositions from both the perspective of both the state and defense. Contact the former prosecutors at Banks & Brower at (317) 870-0019 anytime for a free consultation.