Has anyone ever done a doposition with a witness who will die before trial? I have a case involving a complex embezzlement scheme which will not be indicted for at least two more months. My key witness is dying within the next three months of terminal brain cancer.

Any suggestions?

If it hasn't been indicted yet AND the witness is still able to travel, perhaps grand jury testimony?

If memory serves me, only the defense has the right to take depositions under the CCP. Can you find a way to put the witness on in a pretrial?

File a motion and ask for a hearing to preserve the evidence. There is no specific law giving the State such a hearing, but there also is no specific law prohibiting it.

Give notice to the defense. Give defendant an opportunity to cross-examine. That way, you can at least make the argument the testimony is a dying declaration or subject to admission as a deposition.

Craig, We ran into a somewhat analogous situation in a murder case. One of the detectives who worked the case was headed to Iraq before we could get the case to trial. We filed a "State's Motion To Preserve Testimony Of State's Witness." Fortunately, the defense attorney did not object because he wanted a free shot at the detective. We had the hearing and went through the detective's testimony and marked evidence just as if we were in trial. The defense attorney clearly had an opportunity and motive to cross the witness. I can fax or email you a copy of our motion if you wish. You can email me at distattorney@co.liberty.tx.us or call at 936-336-4609. In my opinion, you need to get under Rule 804(b)(1). This method should work or, in the alternative, get the defense lawyer to ask for an examining trial, put your dying witness on the stand therein, and make sure that you have a court reporter there to preserve the testimony. In our case, we were going to read the testimony to the jury at trial in a manner similar to a civil proceeding where civil depositions are used. We got lucky and our detective was still at Fort Hood when we went to trial so we put him on live but I think our back-up plan would have worked. Hope this helps.

I believe the Dallas Co. DA's office will once again attempt to equalize (without expanding) the deposition situation through legislation. Their HB 1000 (78R) passed the House last session, but died in the Senate.

Shannon is correct. We are making another run at obtaining the same right to preserve testimony for trial that defendants already possess. Please send me your stories about cases where you needed to do this.