Depositions are not a discovery device for purposes of federal criminal practice. But depositions are permitted in the interest of justice or in exceptional circumstances. Further, if both parties agree, depositions may also be taken of witnesses. Either party may file a motion to take a deposition of a witness. The moving party should file its motion promptly and early in the pretrial process. The moving party has the burden of showing that it is necessary to take the deposition of a witness in the interest of justice. It is within the trial court’s discretion to grant or deny the request to conduct a deposition.

Exceptional Circumstances Under exceptional circumstances the deposition of a witness may be taken. The moving party should show that the witness’s testimony is material and that the witness will be unable to appear at trial. The trial court should determine whether the moving party has made a good faith effort to produce the witness to testify at trial in ruling on the motion for a deposition. The moving party is not required to go to unreasonable lengths to ensure the witness’s appearance at trial before filing a motion for a deposition. The defendant may depose a witness who is located outside of the country and who is a fugitive from justice.

Deposing a Defendant

The defendant may not be deposed unless he or she consents. The Fifth Amendment to the United States Constitution protects the defendant from self-incrimination; therefore the defendant cannot be compelled to testify in any capacity including in a deposition.

Deposition Procedure

The party seeking to depose the witness must provide sufficient and adequate notice to the witness and the opposing party. If the federal government seeks to depose the witness, the defendant has the right to be present during the deposition. Further, if the deposition is taken at the request of the federal government, the federal government is responsible for travel and other costs if the defendant is unable to afford such costs.

The deposition is conducted in the usual manner as it is in a civil case. However, the scope of cross-examination follows the rules applicable to criminal trials.

Use of the Witness Deposition at Trial

In order for the witness’s deposition testimony to be admitted at trial the moving party is required to establish that the witness is unavailable to testify at the trial. Moreover, the deposition testimony should also comply with the requirements of former testimony with respect to an exception to the hearsay rule. If the witness is available to testify and testifies at the defendant’s trial, the deposition testimony may be used as evidence to show that the witness’s statements were inconsistent or to impeach the witness.