Missouri Law Re-deposing Witnesses Over and Over Again
Doug Fredrick, a Springfield chaser who does family police, says the most unruly deposition he has heard of (but not witnessed) involved a divorcing husband and married woman, both lawyers.
While the wife was being deposed, the tale goes, the husband got up and adapted the blinds so the sunshine hit her square in the face.
She stopped her testimony, got upward and adjusted the blinds.
He did it again.
She got up and adjusted the blinds a 2d time. Just this time, on her return to her seat, she smacked him in the back of the head.
Depositions do get heated, Fredrick says.
Why care?
Missouri is one of only five states that requite lawyers unfettered ability to depose witnesses in criminal cases.
Whether you lot sue a company – or are sued yourself – or witness a crime, there'due south a good take a chance y'all will receive a subpoena that orders you to requite a deposition, a sworn statement made nether punishment of perjury. In case y'all didn't know, perjury is a crime.
"Merely I take never been agape or scared. I have never had anything thrown."
The deposition, used in civil and criminal proceedings, is a linchpin in our judicial organization, yet few without a law degree know much about it.
The biggest surprise is that it'south an offering you can't refuse.
You are not invited or asked to give a deposition. You receive a subpoena and are ordered to appear.
In other words: While you don't accept to talk to a police officer, you do have to bear witness when subpoenaed to give a deposition.
What is a degradation? It'southward a sworn, out-of-courtroom statement made under penalisation of perjury.
Note the word "perjury."
That's a offense, although few are e'er charged.
Surprise No. ii, at to the lowest degree in the state of Missouri: A subpoena ordering the recipient to give a deposition does not come from a judge. It does not even have to exist approved by a approximate.
Information technology typically comes straight from a lawyer.
Most often, defense lawyers can but straight subpoena a witness for a deposition in criminal cases later on a preliminary hearing, and a guess has found probable cause.
Lawyers are, in fact, considered officers of the court.
Missouri is one of but five states that give lawyers such unfettered ability to depose witnesses in criminal cases, says Rodney J. Uphoff, professor emeritus at the Academy of Missouri Schoolhouse of Law.
He served on the Missouri Supreme Court'southward Criminal Procedure Committee.
Many states allow criminal depositions, but only in a more than restrictive manner. The defence force lawyer must first convince a judge that the deposition is necessary because the witness, for whatever reason, is unlikely to appear at trial.
In most of the nation, a criminal defense lawyer must ask a witness to talk, whether information technology's at a deposition or not. The witness can reject.
In federal court, rarely are defense lawyers allowed to depose witnesses in criminal cases, says David Bell, a defense lawyer in Kansas City.
"It'due south even rarer than the appearance of Halley's Comet," Bell says.
Objections are few at depositions
Whether you're Steve Bannon or Beak Cosby or just a guy who witnessed a crime or a adult female trying to become through a divorce, you better show up when ordered to give a degradation.
If you don't, you can be locked upward for contempt of court.
Depositions are taken in what'due south chosen the discovery phase of litigation. This is when both sides are trying to find out the facts of the case, share what the bear witness will be, who the witnesses will be and what they probable will say at trial, should there be a trial.
A deposition casts a broad net. But only a fraction of the catch is admissible at trial.
Surprise No. 3: An attorney has far greater breadth in questioning a witness at a deposition than at a trial.
Fewer objections occur at depositions. Witnesses are expected to reply.
The standard in Missouri is that degradation questions must be "reasonably calculated to lead to the discovery of admissible testify."
The witness must respond even if the reply would not be admissible at trial.
Lawyers can ask "hearsay" questions that would be barred at trial, says Dan Patterson, Greene County prosecuting chaser.
"Hearsay" is when a witness repeats a statement made by someone else, but the witness has no personal noesis of whether it'southward true.
At a trial, the person who actually made the statement would exist expected to evidence and, therefore, would be subject to cantankerous-test.
"There are relatively few objections 1 tin make in a deposition," Patterson says.
"I can object if I think the question asked is only annoying or oppressive to the witness — if it is essentially to harass the witness," he says.
Of grade, criminal defendants and their spouses are the exception to the dominion. They practise non have to give a degradation. They are protected by their constitutional right to non incriminate themselves.
Likewise, no witness at a deposition tin can be forced to provide privileged information discussed with their attorney.
(Criminal defense lawyers are quick to analyze that a prosecutor is not the attorney for a witness. Witnesses are immune to bring their own chaser to depositions, but few do.)
Patterson says that for two primary reasons, he and other prosecutors don't oft have depositions. It'due south the defense lawyers who do.
The first reason is expense. A deposition costs several hundred dollars. The political party that filed the subpoena must pay for the degradation. Each side can buy a transcript from the courtroom reporter.
Second, prosecutors work with law enforcement officers who interview witnesses, victims and suspects. Police then write reports that are provided to prosecutors and somewhen defense lawyers.
Prosecutors already know what witnesses have said — at to the lowest degree what they have said to police force and therefore rely less on depositions.
Three things to know about depositions
- You must give a deposition when ordered to do so.
- A judge does not accept to corroborate the subpoena you receive to tell you to requite a degradation.
- The opposing lawyer is allowed to inquire y'all pretty much whatever he or she wants. And you must answer.
Cards on the table
Joe Passanise, a seasoned Springfield criminal defense force attorney, says the use of depositions in criminal cases in Missouri levels the playing field.
Prosecutors already have the investigative resources of law enforcement, he says. Defense lawyers have the deposition.
Depositions are a main reason why the vast bulk of criminal cases are settled earlier trial, he says.
"I effort my cases in the depositions," Passanise says. "In many cases, depositions help bring a conclusion to a case."
Passanise says that when he goes to trial, he almost feels he has let his client down by non finding resolution through deposition.
Stacie Calhoun Bilyeu, besides a Springfield criminal defense attorney, never misses a gamble to face at degradation someone likely to testify against a customer.
"Some attorneys pick and choose who they volition depose," she says. "Every witness, I will depose. Period.
"If in that location is someone who I recall is going to testify against my customer, I do not think I've done my job unless I depose that person."
Who attends a deposition?
Nigh always, it is the witness, who plays the leading office, two attorneys (one for each side) and a freelance court reporter who produces an independent, accurate transcript.
If the witness is a child who allegedly has been abused, an advocate for the kid might as well be present.
The witness to exist deposed has the right to have it done in the county where the witness lives. It is typically held in a lawyer's office. Since the pandemic, many are conducted over a videoconferencing system, such every bit Zoom.
If it'due south a criminal case in Greene County, the degradation is oft taken in the victim/witness office of the Greene County Prosecuting Chaser.
Many lawyers consider the deposition a dress rehearsal for what might occur at trial. How stiff is this witness? How credible? How strong is the state's case?
"Unremarkably, you get all the cards on the tabular array," Fredrick says. "And whatever lawyer who is worth his salt can pretty much figure out what the judge volition do."
"Possession of the marital kayak"
Depositions in family-law matters like divorce cover so much basis that Fredrick understands why some call them "fishing expeditions."
"I once saw a motility for possession of the marital kayak," he says.
Fredrick says civil depositions are more broad-ranging than criminal depositions because criminal depositions but wait to the by: Was a criminal offense committed? If so, who did information technology?
"Family unit law is not just whodunit. It is and so many shades of gray. Information technology looks at then, now and the hereafter.
"A lot of things tin can happen during a divorce (proceeding), which tin can last one or ii years. … You might accept a parent who is doing really well, and then they get hooked on drugs and and then they become the bad parent."
In addition, he says, kids grow older and their interests change. The health of parents tin falter. They can lose a job, remarry. A kid tin get emancipated.
Fredrick says, for case, information technology can be hard to determine the income of someone who owns a pocket-sized business. People might testify that they brand trivial income and therefore should pay little child back up.
In turn, Fredrick says, he issues a blazon of amendment called a "subpoena duces tecum" that non only orders the other party to a deposition, merely also demands that the person bring certain documents, such as their tax returns.
Depositions tin can be used to "unravel a pocket-sized business" to find the appropriate level of child support, he says.
Although divorcing couples no longer must provide a reason for their failed marriage — "irreconcilable differences" will suffice — adultery still plays a role in dividing marital avails, Fredrick says, and can be unearthed at a deposition.
Remember, a degradation question must only see the threshold of whether it is "reasonably calculated to atomic number 82 to the discovery of open-door testify."
Information technology matters, Fredrick says, if one of the onetime partners in a divorce is diverting "marital assets," like coin, to a new romantic partner.
He, as a lawyer in the case, tin can inquire about that.
"I had a instance where the guy was taking his 20-year-quondam girlfriend to various locations effectually the nation. It is 'misconduct' to misuse marital funds," he says.
While lawyers have great latitude, information technology doesn't hateful they can inquire annihilation at a deposition.
Fredrick says he would object, for case, if opposing counsel asked his client to name all sexual partners since the solar day of separation.
What happens when that rare objection is made?
Subsequently all, no judge is present at a deposition. Who makes the telephone call when an attorney advises a witness to not reply a question?
In both civil and criminal depositions, the lawyers tin can agree to "certify the question." This means the guess volition be asked later to determine if the witness must answer.
If a deposition becomes also heated and likewise contentious, the court can appoint a "special chief" to rein things in, Fredrick says.
The person assigned must be a lawyer with no involvement in the case.
Impeachment and perjury
A main reason attorneys depose adversarial witnesses is then they can impeach them later on at trial.
Impeachment is when a lawyer catches a witness proverb something different at trial than what was said prior. The purpose is to undermine the credibility of the witness.
The gold standard of impeachment is when both conflicting statements are fabricated under oath.
"Every time everybody tells a story — peculiarly if they are non telling the truth — they are going to tell that story differently," says defense lawyer Bilyeu.
A lawyer's goal at a degradation is non to badger and confront, she says, but to keep the witness talking.
"I am nice to people," Bilyeu says. "The truth is that I have learned over the years that I am trying to go information out of people. I am trying to get that witness to talk to me. I don't want them to clam up. I want that witness to be as comfy as they tin so they talk."
Many times, Passanise says, after a witness cooperates with police, the witness thinks the interaction is over.
Information technology's not.
Passanise says that what is written in the police written report is not necessarily what the witness says at a degradation.
And what witnesses say at the deposition is not necessarily what they say at trial.
"'Lie' is a harsh word for people to own upward to," Passanise says.
"Inevitably, I volition go find out that they looked a person in the eye and told a prevarication. And I'll ask jurors, 'What makes you remember they are telling the truth at present?'"
Passanise deposes witnesses for reasons in add-on to impeachment. He assesses how strong a witness will be at trial.
"What was their demeanor at the deposition?
"It is not so much what y'all say; it is how you say it.
"Do you or don't you have credibility?"
He studies word choices. He focuses on "judgment" words. These are words, he says, that are conclusions, non neutral statements of fact.
Passanise tells the story of how a witness said at a deposition that an alleged victim was "told" by the defendant – Passanise's client – to go to the lake, but in court, the same witness said the alleged victim was "ordered" by the defendant to go to the lake.
"That unmarried word alter alters the whole dynamic of the state of affairs," Passanise says.
Depositions are forever
Patterson, the prosecutor, says the vast majority of witnesses practice their utmost to tell the truth under adjuration.
Rarely in Greene County is someone charged with perjury.
First, Patterson says, the fact in dispute must exist textile to the instance.
For instance, if a witness mistakenly says "Oak Street" instead of "Elm Street," information technology is non perjury if the correct street proper noun has little or nil to do with proving the charge.
Second, Patterson says, if the inconsistency is crucial to the case, a prosecutor would have to evidence the witness deliberately provided false testimony.
Third, he says, to prosecute someone for perjury, it is not enough to simply allege they were inconsistent.
"You take to be able to prove which argument is true and which is simulated."
One thing witnesses might forget is that depositions are forever.
For example, defence force lawyers will routinely wait at the prior depositions of "expert witnesses," who typically are loftier-priced witnesses with advanced degrees and/or preparation.
They testify on bug such equally mental illness, insanity, gunshot rest or, for instance, bloodstain pattern analysis.
An attorney tin can easily ignominy an skillful caught arguing both sides of the science, both sides of the event, from both sides of his mouth.
The poor at a disadvantage
Private criminal defense lawyers similar Joe Passanise or Stacie Calhoun Bilyeu have clients who can afford to pay for depositions.
"The use of discovery depositions in criminal cases is used unevenly in Missouri," says Rodney Uphoff, professor emeritus at the University of Missouri Schoolhouse of Police force.
Defendants who cannot afford a private attorney are represented by a public defender.
"The public defender organization in Missouri is underfunded," Uphoff says.
"Nosotros take public defenders who take so many cases and not enough time to practice the investigations that a private lawyer could do.
"The reality is that public defenders can't use this tool very oft."
The exception would exist in death-penalty cases, where funds are bachelor for public defenders to depose witnesses.
What if a witness dies before trial?
It is the prosecutor's conclusion whether to seek what's called a "deposition to preserve testimony" if there's concern a witness volition be unable to appear later at trial.
Either side can do this, just information technology'south typically the prosecutor.
This type of deposition is different; it must first be approved by a judge.
"It might be an elderly victim," Patterson says. His business as a prosecutor would be that the witness might non live to trial.
Or the witness might be someone in the service likely to be sent overseas.
Or it could be someone who, for whatsoever reason, has been reluctant to testify.
Usually, these types of depositions are videotaped with the idea of playing them at trial.
A judge's blessing is needed because a defendant has a 6th Amendment right "to be confronted with the witnesses against him."
In these instances, it would be upwards to Patterson to convince the approximate it is likely the witness will be unavailable subsequently.
If approved, the guess must ensure the defence force has the opportunity to question the witness at the deposition to preserve testimony.
"In a deposition to preserve testimony, in that location is cross-examination by the defense attorney, every bit ane might expect at trial, and as well objections," Patterson says.
Ceremonious depositions are different, says lawyer Steve Garner, with the firm Stiff-Garner-Bauer P.C.
Any deposition tin can exist used at trial, he says.
That'southward why, he says, nigh ceremonious depositions are videotaped.
"Y'all do not have to prove that the witness is unavailable," Garner says.
The other major deviation between civil and criminal depositions is that the defendant in civil proceedings cannot claim a right to not incriminate themselves.
The exception would be if the witness is also being charged with a crime related to the civil proceedings or is a doubtable in an declared crime related to the civil proceedings.
Garner sues companies over issues of, for instance, product liability, wrongful death or medical negligence. A accused cannot avoid testifying at a deposition or at a trial based on a right to not incriminate himself.
"In a civil case, generally, the only fourth dimension you tin instruct a witness not to reply is if it would violate a privilege," Garner says.
The principal privilege is communications between an attorney and a client.
In criminal cases, either side tin use trial data gathered by a degradation to preserve testimony.
Simply the defense can use regular degradation testimony at trial should the witness dice or, for some reason, not be bachelor at trial — provided the estimate approves its use.
Lawyers also demand a guess's approval before asking most the sexual history of a witness. Missouri has a Rape Shield Statute that protects witnesses from such questions.
But in that location are exceptions, Bilyeu says, that a judge tin approve.
"Peradventure in that location was an alternative source for a hymen not being intact. Or an alternative source for semen.
"And an thing might exist a motive for someone to lie or to make something up."
Finally, the Springfield Daily Citizen asked if a civic-minded denizen who witnessed a serious accident or a crime and willingly talked to police should rent an attorney if ordered later to requite a deposition.
No, says Patterson.
"You don't need an attorney only because you saw an blow."
But if the lawyers accept set the deposition for a fourth dimension that, for example, conflicts with the wedding of the witness'south daughter, and they refuse to change it, Patterson says, the witness might want to hire counsel to get that date inverse.
Similarly, Bilyeu says, the witness in this case should non have to hire a lawyer.
"You should non need one if you are non accused of doing something wrong. If you are just a witness, you are not really putting yourself out at that place."
But she too elaborated.
"If somebody says that you are a liar, then that could exist a crime."
It as well might matter what you were doing and where you were at the time you lot witnessed the accident or crime.
"If there is any clue at all that this thing could get turned on you somehow, then yous might need to accept a lawyer."
Learn more about depositions
The American Bar Association provides a brief, general explanation of depositions at How Courts Work: Discovery
Source: https://sgfcitizen.org/springfield-government/missouris-unusual-reliance-on-depositions-and-what-you-should-know/
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