Deposition (law)

Deposition (law)

In law, a deposition is witness testimony given under oath and recorded for use in court at a later date. In many countries, depositions are given in courtrooms. In the United States, they are usually taken elsewhere. In the United States, it is a part of the discovery process in which litigants gather information in preparation for trial. Some jurisdictions recognize an affidavit as a form of deposition.

Civil Procedure in the United States

Federal courts of the United States describe the procedure for taking depositions in Rule 30 of the Federal Rules of Civil Procedure. There are corresponding rules in state courts. If the person's testimony is demanded of a party (deponent), then notice may be given to that person's attorney. If the witness is not a party to the lawsuit (a third party), then a subpoena must be served on him/her if he/she is reluctant to testify. The person to be deposed (questioned), known as the deponent, is usually notified to appear at the appropriate time and place by means of a subpoena. To record the statements made during a deposition, a court reporter, also known as a stenographic reporter (sometimes denoted "CSR" for Certified Shorthand Reporter) is present, and records the statements on a stenograph. Alternatively, depositions may now be taken by audio or video recording. A depostion begins by having the court reporter administer the same oath or affirmation that the deponent would take if the testimony were being given in court in front of a judge and jury. Thereafter, the court reporter makes a verbatim stenographic record of all that is said during the deposition, in the same manner that witness testimony is recorded in court. The statements made during a deposition are then published in a booklet, which is provided to the deponent and to any party to the suit, who wishes to purchase a copy. Many CSRs nowadays also make an audio or video recording.

Attorneys for the non-deposing litigant are often present, although this is not required in all jurisdictions. The attorney who has ordered the deposition begins questioning of the deponent (this questioning is referred to as "direct examination" or "direct" for short). Since nods and gestures cannot be recorded, the witness is instructed to answer all questions aloud. After the direct examination, other attorneys in attendance cross-examine the witness. The first attorney may ask more questions at the end, in re-direct, which may be followed by re-cross.

During the course of the deposition, one attorney or another may object to questions asked. In most jurisdictions, only two types of objections are allowed: The first is to assert a privilege and the second is to object to the form of the question asked. Objections to form are frequently used to signal the witness to be careful in answering the question. All other objections, in particular those involving the rules of evidence, are generally preserved until trial. They need not be made at the deposition.

The chief value of a deposition, as with any discovery proceeding, is to give all litigant parties in a contested case a fair preview of the evidence so that a "level playing field" is achieved and surprise (traditionally regarded as an unfair tactic) is avoided at the time of trial. Another benefit of deposition is to preserve a witness's recollection while it is still fresh, since the trial may still be months or years away. In the event a witness is unavailable for trial, their deposition testimony may be read before the jury and made part of the record in the case, with the same legal force as live testimony. In some states, depositions can be offered into evidence even if the witness is available. In any case, one party can use a deposition to impeach (or contradict) the witness's testimony in open court.

Some depositions are videotaped, in anticipation of the unavailability of a witness at trial, so that if necessary the videotape may be played for judge and jury.

Sometimes, after a number of witnesses have been deposed, the parties will have enough information that they can reasonably predict the outcome of a prospective trial, and may decide to arrive at a compromise settlement, thus avoiding trial and preventing additional costs of litigation. Accordingly, while most depositions are not videotaped, it may be of value for parties to make a positive impression on the opposing side's lawyers with respect to affect and appearance because these are telling factors as to how that person will present in front of a jury.

Criminal Procedure in the United States

In the United States, depositions may be taken in criminal cases, for reasons that vary between jurisdictions. In Federal criminal cases, rules 27–32 of the Federal Rules of Criminal Procedure govern the taking of depositions. Each state has its own laws which govern the taking of depositions.

Most jurisdictions provide that depositions may be taken to perpetuate the testimony of a witness, that is, preserve their testimony for trial. If the person requested to testify (deponent) is a party to the lawsuit or someone who works for an involved party, notice of time and place of the deposition can be given to the other side's attorney, but if the witness is an independent third party, a subpoena must be served on him/her if he/she is recalcitrant. This occurs when a witness may not be able to testify at trial. The deposition of the witness is taken and, if the witness is unable to appear at trial, the deposition may be used to establish the witness' testimony in lieu of the witness actually testifying. In depositions to preserve testimony, the 6th Amendment's Confrontation Clause establishes the Constitutional right of the defendant to be present during the deposition and to cross examine the witness. The defendant may waive this right.

Some jurisdictions provide that depositions may be taken for purposes of discovery. In these jurisdictions, the defendant does not have a constitutional right to be present, although such a right may be established by statute.

A defendant in a criminal case may not be deposed without his consent because of the 5th amendment right to not give testimony against oneself.

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