Depositions are a discovery device used in criminal practice to elicit information from a witness. If permitted, depositions may also be taken of witnesses. Either party may file a motion to take a deposition of a witness. The moving party should file its motion promptly and early in the pretrial process. The moving party has the burden of showing that it is necessary to take the deposition of a witness in the interest of justice. It is within the trial court's discretion to grant or deny the request to conduct a deposition.
It is also important to remember that in a felony case the court does not need to give permission but in a misdemeanor case, the court needs to grant permission to conduct depositions. This is why, no matter what the charge, it is important that you have a dedicated and knowledgeable lawyer on your side to guide you through every step pf the legal process.
Have questions? Let Fort Lauderdale criminal defense attorney Lorri Fishman provide the answers. Contact the firm today at (954) 371-0229.
Under exceptional circumstances, the deposition of a witness may be taken. The party will have to show that the witness won't be able to appear at trial and has made a good faith effort to have the witness appear at trial. However, the party is not required to go to unreasonable lengths to ensure the witness's appearance at trial before filing a motion for a deposition. The defendant may depose a witness who is located outside of the country and / or is a fugitive from justice.
The defendant may not be deposed unless he or she consents. The Fifth Amendment to the United States Constitution protects the defendant from self-incrimination; therefore the defendant cannot be compelled to testify in any capacity including in a deposition.
The party seeking to depose the witness must provide sufficient and adequate notice to the witness and the opposing party. If the federal government seeks to depose the witness, the defendant has the right to be present during the deposition. Further, if the deposition is taken at the request of the federal government, the federal government is responsible for travel and other costs if the defendant is unable to afford such costs.
The deposition is conducted in the usual manner as it is in a civil case. However, the scope of cross-examination follows the rules applicable to criminal trials.
If the witness is available to testify and testifies at the defendant's trial, the deposition testimony may be used as evidence to show that the witness's statements were inconsistent or to impeach the witness.
Lorri Fishman understands that the criminal process can be extremely complex and confusing. Let her walk you through the process. Call the Law Offices of Lorri K. Fishman today at (954) 371-0229.