Taking an Effective Deposition in a Criminal Case

by Shaun Khojayan on Jan. 02, 2020

Criminal White Collar Crime Criminal  Felony 

Summary: How to prepare and take depositions when they are allowed in criminal cases.

Rule 15 of the Fed. R. of Criminal Proc. makes depositions available to both sides upon good cause shown. These tips will make the effort more rewarding and the deposition more useful at the criminal trial.

  1. Ask Correctly Formed Questions and Clarify Unclear Answers.

    Questions like "Who did he meet there?" are of little value without the context of other questions and answers. Remember that the deposition will not be played in its entirety to the jury. The court will rule on objections lodged during the deposition and only the remainder of the deposition will be used at trial. Thus, you should re-ask questions to which our opponent objects in a way that make the questions clear and not objectionable. You should re-ask until there is no objection. Most of the time, asking a clear question is as simple as using fewer pronouns: "Who did Mr. Johnson meet at Ms. Christine's house?" The jury understands and can follow this question more clearly than "Who did he meet there?" and with less context. As well, restate answers such as "He met her at that time" to make clear the subject and object of the sentence, e.g., "You mean, Mr. Johnson met Ms. Christine at 6:00 p.m.?" Clear deposition transcripts make it easier to impeach another witness or the deponent if she later attends trial or if you need the testimony to support a particular motion in limine. Asking short questions with fewer pronouns and clarifying unclear answers requires practice and patience. But, the additional effort will be worthwhile in the end.
  2. Object To Unfounded Objections or Speaking Objections.

    You should object during depositions to preserve your objections and assert privileges for court review later. Some jurisdictions have limits on the kind of objections you can make during a deposition, such as limiting the objection to "the form of the question" or to preserve a privilege. You should assume that if you do not object, the court will rule that you waived that objection. Knowing this, a prosecutor may repeatedly lodge objections to your questions. However, repeated objections such as "vague" or "asked and answered" or speaking objections are sometimes unfounded and not made in good faith. Such repeated, unfounded objections serve to obstruct your questioning and signal answers to the deponent. You should object to the repeated objections to ensure that your questioning is not obstructed: "Counsel, I object to your repeated objections and speaking objections. Your repeated objections have the effect of coaching the witness which is improper. If this continues, I will adjourn this deposition and move for a protective order." This statement should stop the obstructive tactics - at least for a good while. If he continues, repeat your objection and adjourn the deposition with the understanding that you will be filing a protective order to control the abusive tactics. If the deposition is outside of your district, before traveling to the deposition, clarify with the court the procedures to follow to handle protective orders or motions to compel to avoid delay in having to reschedule the deposition. The court may agree to handle such deposition issues informally by teleconference or on an expedited basis.
  3. Avoid Making or Allowing "Standing Objections."

    The deposition may drag on. However, do not make "standing objections" or recognize the prosecutor's "standing or continuing objection" to a line of questioning. Standing or continuing objections are vague, unhelpful to your cause and likely not recognized by the court. See e.g., United States v. Merida, 985 F.2d 198, 201 (5th Cir. 1993) (request for continuing objection based on lack of foundation did not preserve hearsay and confrontation objections); United States v. McVeigh, 153 F.3d 1166, 1200 (10th Cir. 1998) ("the considerations bearing upon a decision whether to admit or exclude evidence under Rules 404(b) and 403 are sufficiently complex that ordinarily neither counsel nor the trial court should rely on a standing objection with respect to evidence coming within the purview of these rules.") overruled on other grounds by Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999). To avoid the uncertainty of a judge's ruling on a continuing objection, tell your opponent that you do not agree to recognize his standing objection and that he should state whatever objections he has accordingly and timely. See Fed.R.Evid. 103(a)(1).
  4. The Deposition Will Be Videotaped So Dress Appropriately.

    In criminal cases, there is greater likelihood that the deposition will be videotaped to be later played for the jury. Yet, some prosecutors, especially those with civil litigation backgrounds, dress casually because "there is no jury present." That is not good practice. You should not show up in jeans or dressed casually. You will be recorded when you move around during the deposition, show the witness an exhibit, or act out something for the witness to see and testify about. You also want to signal to the witness and jury that you take this witness's testimony seriously. You should also describe your exhibits as you use them and, if you can, lift them up for the camera to record and preserve the testimony accurately.
  5. Pre-mark Exhibits and Be Prepared to Impeach the Witness.

    Two weeks before the deposition, you should walk through the deposition in your mind. The categories of questions you will ask, how you will develop each topic before moving on to another topic, and exhibits you will use during the deposition. You should make sufficient copies of exhibits to avoid delays in your questioning. Pre-mark your exhibits. If you have electronic or audio evidence to play for your witness, make sure your equipment works in advance and be prepared to mark that recording or DVD as an exhibit. This is a deposition of a witness in a criminal case and not necessarily a discovery tool. This witness may not be friendly to your cause. You need to ask and prepare short, one subject questions that are not objectionable. Leading questions are helpful and appropriate too. You need to be ready to impeach this witness as you would at trial. On a related note, the deponent has to answers all of your questions regardless of objections unless the deponent's attorney (unlikely to be the prosecutor) instructs him not to answer to preserve a specific privilege. Thus, one way to keep the questions and answers flowing like an informal conversation (and to elicit more truthful testimony) is to keep eye contact with the deponent while the prosecutor lodges his objections and calmly advise the deponent to answer your question -- without breaking eye contact with the deponent. This tactic implies to the deponent that the objections are secondary and you are there to hear her answers. Of course, like mentioned earlier, try to ask or re-ask questions in an unobjectionable form to preserve the particular answer.
  6. Bring An Investigator With You.

    The prosecutor will attend the deposition with a special agent who you assume will not interfere with the deposition. But while you ask questions you do not see what is taking place behind you or to the side. Whether intentional or not, the prosecutor or his special agent may nod their heads or roll their eyes and signal to the deponent how to answer. After all, there is no judge or jury present, no one to catch this impropriety. You should not attend the deposition alone and assume that everything will go smoothly. An investigator or assistant should attend the deposition to pay attention to the questioning and watch the other participants present to ensure there are no improprieties, signals, head shakes or rolling of the eyes. Even if unintentional, these improprieties happen and you need to limit them during your one try with this otherwise unavailable, material witness.
  7. Take A Break Every Hour.

    Although you feel good and think you are on a roll, you need to take breaks during the deposition to ensure you do not miss anything. A deposition is not a race and there is no need to rush your questioning. A break every hour to use the bathroom or get a drink of water - even if you do not think you need it -- will help your stamina and thought process. During the break, you can confer with our investigator or assistant as to what topics you may have missed or glossed over or what testimony was unclear that needs to be clarified. However, keep in mind not to allow your opponent to take a break while you have an unanswered question pending because it could be considered improper coaching. See Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993).
  8. Ask Questions Regarding Unavailability.

    Depending on your strategy, you may still want the prosecutor's deposed witness to appear at trial. Thus, you should ask questions that explore the basis of the witness's alleged unavailability. "[A] witness is not 'unavailable' for purposes of the . . . exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Barber v. Page, 390 U.S. 719, 724-25 (1968). What diligent efforts has the prosecutor made to make the deponent available for trial? Is the deponent medically unable to fly? Has any doctor advised him about his inability to fly? What did the doctor specifically tell him about flying? How long ago was the advice? If his airfare and stay were paid, could he probably attend trial? Or is attending trial just inconvenient? If you can establish that the witness is not truly unavailable then you can later move in limine to compel the witness's live testimony at trial to preserve our client's Sixth Amendment Right to Confrontation and have the jury meaningfully evaluate the witness's demeanor and credibility. See United States v. Drogoul, 1 F.3d 1546, 1552 (11th Cir. 1993). You can also oppose the deposition beforehand on these grounds, i.e., insufficient showing of unavailability, but then the prosecutor will be wise to establish unavailability through declarations and prepare the deponent for such questions.
  9. Conclusion

    An effective deposition will read more clearly and not confuse the fact finder. If you prepare your deposition strategy in advance and take more breaks to confer with your investigator or assistant, you will get more helpful testimony to use later at trial.

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