An integral part of any criminal defense attorney’s duty to zealously represent the interests of his or her client is to adequately prepare for trial. This preparation is based in part on a firm grasp of the applicable criminal statutes and how they define the elements of the underlying charges against the client, and partly on an awareness of how tactical considerations can come into play. One such consideration is whether, and when to use pretrial depositions of witnesses.


What is a deposition?

A deposition is a mechanism of what is referred to generally as “discovery,” which includes several means of gathering information in advance about the other side’s case. Specifically, a deposition involves placing an individual under oath and asking that person questions about his or her knowledge or recollections that are relevant to the matter at hand. Depositions can be used as an alternative to live witness testimony when the witness cannot be available at trial. They can also serve to contradict or “impeach” the testimony of a witness during trial when the trial testimony differs from the sworn statements that person gave during the deposition.

Depositions are a staple of civil law (that is, non-criminal) case preparation, but they are not as commonly used in the criminal law context, at least in part because the rules governing pretrial discovery already require the prosecution to disclose information to the defense that could be beneficial to its cause. But they still have some uses, as we will see below.


How can my defense attorney get authority to depose a witness?

The most important hurdle to overcome in gaining access to deposition testimony in a criminal case is to show a compelling need for it via a motion to the court. The federal rule of criminal procedure for deposing witnesses requires a finding of “exceptional circumstances” to grant a motion for discovery; this concept is similar in Oklahoma state courts.

So what circumstances would be considered extraordinary enough to warrant a deposition in a criminal case? Here are some examples:

  • The witness lives in a foreign country: It can be difficult or even impossible to compel a witness who lives in another country to come to Oklahoma to testify in person at trial. A deposition can still secure that person’s sworn testimony.
  • The witness is unable to testify at trial: What happens if a witness has a serious or even terminal illness, or is otherwise too old or physically unable to come to court? This would be a good reason to resort to deposition testimony, as would be some other circumstances making it physically impossible for a person to testify, such as serving a prison sentence.
  • The witness is unwilling to testify at trial: Sometimes a witness has reason not to want to come to court to testify in person, such as being fearful of being arrested himself for some other crime if he shows up in the state (that is, the witness is a fugitive from the law). Conducting a deposition outside of the jurisdiction can be one way to obtain the testimony of such a recalcitrant witness.


What happens at a deposition?

Assuming that the court grants the motion for a deposition in a criminal matter, your attorney will undertake it in a manner similar to direct or cross-examination in a trial setting (for example, the attorney’s questions cannot go beyond those that he or she could ask in the courtroom).


Do I have to attend a deposition if I am a defendant in a criminal case?

You are not required to personally attend a deposition that your defense attorney has scheduled. In fact, if the prosecution seeks to depose you (depositions can go both ways), it cannot do so without your consent. Your attorney will likely want you to be present at the deposition, though, because often you will have knowledge relevant to the testimony of the person being deposed that can be valuable to your attorney in assessing the accuracy and completeness of that testimony.


How do I know if a deposition would be helpful in preparing my defense in a criminal case?

Chances are that you will not know whether you would benefit from having deposition testimony made available, or more importantly, even if a deposition would be allowed by the court. It is rare that criminal depositions are done but it is important to know that they are an available tool should it be needed.