Many people have heard of depositions, but it is surprising the number of times witnesses are unfamiliar with what they are, the purpose behind them, and what is expected of them when subpoenaed for one. This blog will attempt to address the purpose of depositions in criminal cases.
So, what is a deposition in a criminal case? In most counties in Indiana, in order to get a witness’ testimony, under oath, prior to trial, and admissible for impeachment at trial is by conducting formal depositions and having them transcribed. Some counties do allow for what are called “taped statements,” which is a deposition without a court reporter, but we will focus on formal depositions here. Also, this blog will focus more on state criminal charges as depositions are limited at the federal level.
Depositions, simply put, are interviews of witnesses in criminal cases, whereby they are placed under oath, under the penalty for perjury, with a prosecutor present, the defense attorney, and a court reporter who is transcribing every word and either visually and/or audibly recording the questioning. There are circumstances where other observants may be present but can’t speak (i.e. victim advocates, detectives, parents in juvenile cases, civil attorneys, interested legal 3rd parties, etc.).
Whomever is conducting the depositions will begin asking questions of the witness while that witness is under oath. Typically, the rules of evidence are slightly relaxed, as the standard for asking questions is, “will this likely lead to discoverable evidence?” If either party, the prosecutor or defense attorney, believes a question is objectionable they can object for the record. Often times if an objection is aired, a record is made of the objection for argument later at a separate hearing before a judge and the witness is instructed to answer the question despite the objection. There are times when either party may ask to certify the question to a judge before the deposition continues. If this happens, depositions can end prematurely until the judge rules on the objection, and then the deposition continues at a later date. However, this is very rare.
Depositions are important because they give the questioner a chance to find out what someone’s testimony would be if the case were to go to trial and to lock them into that statement for impeachment purposes later (to contradict prior or subsequent inconsistent statements to impugn character). As such, it is crucial that witnesses tell the truth, think long and hard about their answers, not guess or assume, and stick with what they know. To do otherwise can land them in a situation where their own words can be used against them in the future. The best thing to do is to answer with, “I don’t know” or “I’m not 100% sure” if the witness isn’t certain of their answer. Witnesses can also qualify their statements by saying, “to the best of my recollection . . . .” Typically, if the witness has questions or needs a break, this is allowed by agreement and often is stated before the depositions begin.
The ease of the deposition often depends on the person conducting the deposition itself, the subject matter at hand, and attitude of the person being deposed. Obviously, if a questioner is aggressive, in a tough case (i.e. sex offenses), and the deponent is aggressive or combative in response, the deposition can be long and grueling. Typically, however, depositions are professionally conducted and by parties that are skilled and experienced in questioning witnesses. Usually the best approach is for the witness to answer the questions the best they can, take their time, and be truthful without being combative.
So, what’s the point of conducting the deposition if the witnesses are going to be called again at the trial to testify? Well that’s the whole point. If there is a chance that a criminal case might go to trial, depositions allow for the deposing party to get a gauge on what that testimony might be, lock the statement in for impeachment purposes later, and get a feel for what type of a witness that person might be on the stand later at trial (i.e. are they combative, sheepish, lying, etc.).
By conducting depositions, both the prosecutor and defense attorney are less surprised at what happens at trial and allows both parties to be as prepared as possible for trial. Depositions often narrow the issues to argue over and provide a clearer picture for where the case stands. In fact, often times, depositions lead to cases resolving easier because either party may see weaknesses or strengths in their own positions after they are conducted. There is a school of thought that depositions aren’t necessary and it is best to find out what a witness will say at trial. However, in our experience, this calls for too much uncertainty and risk for our clients.
It is important to note that depositions do cost money for the court reporter and for the transcribing process — something to take into consideration when deciding if depositions are necessary and of which witnesses. It may make since to limit depositions to essential witnesses, like victims, eye witnesses, etc. That can save cost and narrow the focus.
Nevertheless, there are circumstances that depositions may be dangerous for a defendant. For example, if a witness shows for deposition and then doesn’t show up for trial, their deposition testimony may be able to be used if they are later found to be “unavailable.” It may also force a prosecutor to get more engaged with a case that they may otherwise have been ignoring. They may also result in plea offers being withdrawn or made harsher. These are all conversations and possibilities that a defendant should have with their attorney. Any experienced criminal defense attorney will be able to provide guidance on when depositions are or are not in their client’s best interest. However, if used appropriately, they can be a great tool for resolving criminal cases.
If you or a loved one are facing a criminal charge in Indiana, give the experienced criminal defense attorneys at Banks & Brower a call today. We are available 24/7 at 317.870.0019 or at info@banksbrower.com.