Does anyone know if we can take a deposition of a victim and if so how? We have a problem in that the main victim in one of our cases has a terminal disease and we are unsure if they will make it to trial or be able to testify if they do.

Everything I am finding in the code seems to be for the defense. I would appreciate any help you all could provide.

Thanks,

Scott

You have read the Code correctly. The State does not have the right to depose witnesses in criminal cases. We tried to get that changed in the last legislative session. The bill passed the House without a hitch, but bogged down in the Senate Criminal Justice Committee. Any chance you could convince the other side to request the deposition or ask for an examining trial? If you wouldn't mind, can you send me your basic facts? We're going to take another stab at depositions for the State next session and can use supporting information.

I think the key to getting a useful deposition statute passed is to narrow the grounds for cause to: the witness will otherwise be unavailable for trial due to illness or death. You also could provide another exception if by agreement of both the state and the defendant.

The current "good cause" ground, I think, makes liberals nervous. And how could a good liberal be opposed to preserving the testimony of a witness who will be dead or too ill to testify?

Why shouldn't the state be able to depose someone under the same circumstances as the defense?

When an investigator conducts an interview, has it recorded and later transcribed, the only thing missing is the oath.

I've never thought about it until this thread, but why shouldn't we be able to depose a witness? Or, even a Co-Defendant?

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I've never thought about it until this thread, but why shouldn't we be able to depose a witness? Or, even a Co-Defendant?

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Because we haven't insisted that the Legislature grant us that right. It's as simple as that.

John Rolater and the Dallas DAs office made a good run at this last session, but were mostly flying solo. I'm sure with a little help from friends, they (we) can get this done!

You would have to look at the resources of the defendant. Deposing a person takes money. To have an easier chance of this taking place, you would want to provide the court reporter, free of charge. Well, and one more thing, what if you need to recall this witness, based on the testimony of other witnesses at trial - it might be a problem.

Not that I oppose making depositions available to both sides, but I have always had the feeling that judges don't routinely grant defendants the right to depose very many witnesses because it is such a one-sided law. If we get the right to take depositions, does that mean the judges are going to more freely begin to grant motions for depositions by the defense? I sure would hate to get into a situation where the defense is routinely granted the right to take depositions of all our witnesses and we only have the limited right to depose a witness who may die.

By making my suggestion, I meant that the law should be amended to allow both sides to take depositions, BUT ONLY IF THE WITNESS WILL BE UNAVAILABLE AT TRIAL BECAUSE OF ILLNESS OR DEATH. Otherwise, it would be unfair.

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Originally posted by Tim Cole:
. . . I have always had the feeling that judges don't routinely grant defendants the right to depose very many witnesses because it is such a one-sided law. If we get the right to take depositions, does that mean the judges are going to more freely begin to grant motions for depositions by the defense?

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That is certainly a valid consideration, but we would have the current restrictive interpretation of good reason to oppose discovery as opposed to preservation of testimony depositions. Or, instead of amending the current deposition statute in Article 39, perhaps you could create a separate one for the State in Article 38 entitled "preservation of testimony," which would further indicate intent that no other change occur in current practice.

I don't have a problem with it as long as it remains clear that there is no general right to depositions for the defense. In fact, I like John B's idea of restricting both sides to the same standard.

I had a 90 year old aggravated sexual assault victim that I was worried we would have problems getting to trial. She would make an great witness for us to use in a hearing on this matter. The 19 year old who raped her pled to 50 years and is already in TDCJ.Call me if you need her name.

We are going to trial in a month on a habitual defendant who purse-snatched from an 80 year old lady in a parking lot (agg robbery because he hurt her arm). He fled to Louisiana and by the time we found him, our victim had died. We are still going to try but it won't be as easy as it would have been if we could have deposed her. At least we've still got a bail jumping charge.

The law must be changed.

Joe Bob, do you think the Defendant will have waived his right to confront or cross-examine in that situation? A deposition may not always be the solution.

Has the case already been indicted? I remember a long time a go a case in which a defendat poured gasoline on a person and lit her on fire. As the victim laid in the hospital sure to die in a month, the court set the case for an examining trial. With the right of confrontation, her video-taped testimony was admissible at the murder trial.

ignore this post....techinical difficulties...

Deposition, by its nature, involves both parties so there is no problem with getting a waiver for cross-examination.

As the only defense attorney (my previous life) who has EVER taken a deposition (not video, just transcribed) in a traffic ticket (display of acceleration--Wichita Falls is a court of record) as far as we can tell (the passenger in my client's car had joined the navy and was being stationed in Guam right before our jury trial), I can tell you that it does work, juries understand, and the State should have the right to take a deposition as well. However, D.A.'s who have never practiced civil law will need to bone up on deposition procedure and use in trial--the City Prosecutor made quite a few mistakes, argued improperly at closing and got slapped down by the judge in front of the jury after my second objection. (And, yes, I won.)

I have an idea for allowing depositions only in these extreme cases with a built-in mechanism to limit the sort of abusive discovery that has become so common in civil cases.

1 A deposition may be taken if the court finds that a witness for either side is facing immanent death such that the witness will not be available to testify at trial.

2. Both parties must be present at the deposition.

3. The deposition may only be introduced only when, outside the presence of the jury, the court reviews the deposition and finds that both parties were represented, except that the party that requested the deposition may not introduce it at trial unless the witness is found by the court to be dead, comatose, or otherwise unable to testify at that time because of a severe physical malady.

Hey Rob,

The case in Harris County in which you mentioned the video examing trial was State v. Lisa McNeil, out of the 176th DC. Andy Tobias tried the case for the State.