Has anyone had the chance yet to move for and then take a deposition of a State's witness under the new and improved 39.02?
I'm getting ready to file a motion to take the deposition of several of my more elderly witnesses in a very elderly case, and was wondering if there are any pitfalls anyone has encountered. And just to show my total ignorance of the world of depositions and civil law, I was also wondering whether the defendant has to be present for the deposition?
If anyone has already filed for one, I'd love to see your motion. My email is lisa.tanner@oag.state.tx.us
(Just typing this post makes me so happy that the law has changed! Thanks again John R, et al)

To keep the deposition admissible at trial and to avoid later claims of confrontation problems, I don't see why you would ever hold a deposition without the presence of the defendant. That way, you offer the defendant the opportunity to cross-examine. If the witness dies before trial, at least you can argue the defendant had an opportunity for cross-examination.

Of course, the defendant can always pull out his trusty ineffective assistance of counsel claim.

I used the new deposition provision in a death penalty trial that I did in November. Our victim's husband was not in very good health and was tethered to an oxygen tank. We actually did the depo in his home. I'll will admit that we had two very understanding defense attorneys who were quite agreeable to the depo as oppoosed to forcing the man into court. We had a hearing on the record where the DEF agreed to waive his presence. I was lucky because even though he "testified" on a TV monitor, his testimony was quite compelling. I'll gather up our material and send it to you.

Thanks Greg, I'll look forward to getting your stuff.
OK, so here's another "I've never, ever done civil work" question. Is the taking of a deposition open to the public? I was planning on just setting up a videocamera in the courtroom, but then I got to thinking about how it plays out if the public and press can be there. Having a public "preview" of critical trial testimony could end up seriously impairing venue in a high profile case.... What do y'all think?

It is not open to the public. I would suggest taking it in a jury deliberation room or an office. Generally, the camera is only on the witness.

Thanks to Rep. Jerry Madden and Sen. Chris Harris for seeing the bill through.

John B. is right--defendant needs be there or affirmatively waive his presence under the Sixth Amendment.

Rep. Madden asked just this week how this law was working. I know some folks in South Texas have used it. I don't believe we have, yet.

This recent case seems like a useful discussion of a likely objection to a deposition:


"Defendant asserts that he did not have an adequate opportunity to cross-examine Brian Johnsen at the conditional examination because his attorneys later acquired additional information that would have been useful in cross-examining Johnsen. In particular, he calls our attention to the statements that Johnsen later made, after he had been charged with capital murder,FN9 admitting that he was aware of and agreed with defendant's plan to kill Holloway. Again, however, the situation is no different than if Johnsen had testified at defendant's preliminary hearing or at a prior trial of defendant on the same charges. Absent wrongful failure to timely disclose by the prosecution, a defendant's subsequent discovery of material that might have proved useful in cross-examination is not grounds for excluding otherwise admissible prior testimony at trial."


People v. Jurado,131 P.3d 400, 429 (Cal. 2006)

What if you have prior testimony by a witness in one defendant's previous trial, which covers the exact same topics you'd want to cover in a co-defendant's trial and that witness passes away before you can get him deposed in the co-defendant's case.
I know Rule 801(b)(1) refers to the "party against whom the testimony is now offered" but has anyone ever argued that it should come in against a co-defendant simply because his motive in developing cross is exactly the same as the motive of the guy who already did get to cross the witness????
I know I'm grasping at straws here but I've got a depo scheduled in 3 days on a witness for whom it appears the depo's gonna be about 5 days too late....

Rule 804 only allows admission of prior testimony where the party against whom it is offered had an opportunity and similar motive to cross in the prior proceeding. Thus, I don't think you can do it. Plain language of the rule. Thus, even if this met Crawford, and I don't think it does, it does not seem admissible under the rules. Any chance the witness is dying because of something the defendant did? Crawford seemed to hold out the possibility that estoppel might apply where the defendant caused the unavailability of the witness . . .

afraid not. Just the effects of trying to prosecute something that happened a long, long time ago. My read of 804 (not 801 like I put in my original post, oops...) is the same as yours. I was just hoping someone had already taken the plunge!

quote:

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Originally posted by John Rolater:
Rule 804 only allows admission of prior testimony where the party against whom it is offered had an opportunity and similar motive to cross in the prior proceeding. Thus, I don't think you can do it. Plain language of the rule. Thus, even if this met _Crawford_, and I don't think it does, it does not seem admissible under the rules. Any chance the witness is dying because of something the defendant did? _Crawford_ seemed to hold out the possibility that estoppel might apply where the defendant caused the unavailability of the witness . . .

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But John, what about a situation where the defendant seeks an order for a deposition? I have participated in one deposition in 15 years of prosecution, and it was requested by the defendant. What if that witness passed away prior to the trial? If both parties and defendant/waiver are present and have an equal opportunity to cross, is crawford still offended?

If the defendant requested the depo (and only the defendant could before 9/1/05), then he would have the opportunity to be present and the same motive for direct/cross contemplated by Rule 804. Crawford is not offended in that case where the deposed witness is unavailable due to death. Lisa's situation involves a proceeding that did not include the defendant--the trial of a separate party. Since her current defendant was not there to cross-examine, it is a confrontation problem. Moreover, even if that hurdle didn't apply, it wouldn't meet 804 because it wasn't a prior proceeding involving the defendant. Indeed, the language of 804 leaves open the possiblity that prior proceedings involving your defendant (and an opportunity to cross/direct) may not qualify if he had a different motive for developing the testimony.