The case is child death by shaking. The former babaysitter is dying of cancer and will dead by trial time. Is there any way to preserve her testimony such that it will be admissible at trial? I read Chap. 33 CCP to apply only to defendants.

As I read 39.01, a deposition of the babysitter may be taken before an examining trial and reduced to writing and certified so long as the defendant is present and afforded an opportunity to cross-examin the witness....it may then be used by either the State or the defendant in the trial of the defendant where the witness has died after the testimony was taken.

I believe the State could examine the babysitter during an examining trial and preserve it should she die - although I personally have never done so.

The examining trial may be our only hope...the only problem is that the hearing could turn into a free shot for the defendse at many of our witnesses. I assume if we undertake to hold such a hearing we would be obligated to go the whole way in proving PC and not just preserving our dying babysitter's testimony.

therein lies the problem.......but the only solution i've been able to come up with! hopefully, someone else will have a better idea!!!

Why not just file a motion requesting the preservation of material evidence? Set out the special circumstances, ask the judge to set it for a hearing, put the witness on the stand, and invite the defendant to cross-examine the witness.

You have the facts on your side. Now you have the chance to make some good law.

You might take a look at Boyd v. State, 633 SW2d 578 (Tex App - Texarkana, May 23, 1982) and Silguero v. State 654 SW 2d 492 (Tex App - Corpus Christi, April 14, 1983).

Both cases involved depositions/prior testimony in criminal trials.