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Depositions in Domestic Violence Cases


When witnesses testify at trial in movies, the witness testimony often reveals surprising plot twists.  In real life, it is still suspenseful for a defendant when a witness takes the stand at a criminal trial, even though the defendant already knows what the witness is going to say.  What the defendant cannot predict is how the jury will react and whether the jury will find the witness credible.  How do prosecutors and defense lawyers know which witnesses to call and what questions to ask them?  The lawyers for both sides will have been preparing for the trial for several months, during which time they will have examined numerous documents and pieces of physical evidence, and they may have even talked to the same witnesses they will summon for the trial.  Here, our Miami domestic violence defense lawyer explains how depositions work in criminal cases and the current debate over the role of depositions in criminal trials related to domestic violence.

What Is a Deposition?

If you walk into the middle of a deposition, it sounds like an interview or question and answer session, but from a legal perspective, it is much weightier than that.  With the court’s permission, a lawyer representing a party in a legal case (a defendant, the state or federal prosecutor in a criminal case, or a plaintiff in a civil case) summons a witness to give a deposition.  To get the court’s permission, the lawyer must submit a statement explaining why the lawyer thinks that the witness knows important information about the case that the lawyer could not otherwise find out.

The deposition usually takes place in the office of the lawyer that summoned the witness.  A court reporter also attends the deposition and records a transcript.  A lawyer for the opposing party, the one that did not summon the witness, also attends.  The witness swears an oath to tell the truth, much as witnesses do when testifying at trial.  The lawyer who summoned the witness asks the witness a pre-prepared list of questions, as well as follow-up questions that arise from the witness’s answers.  The lawyer for the other party then cross-examines the witness.  The witness can say “I don’t know” in response to a question if it is an honest answer, but he or she cannot lie.  A deposition is sworn testimony, so lying during a deposition is the crime of perjury.  If the witness has a reasonable fear that answering the question truthfully will cause the witness to face criminal charges or to be convicted in a pending criminal case, the witness has the right to plead the Fifth Amendment.

Depositions in Criminal Cases

In civil cases, such as breach of contract disputes or personal injury cases, it is common for the plaintiff and the defendant to give depositions.  In criminal cases, it is against the law to ask a defendant to give a deposition.  Doing so would violate the defendant’s Fifth Amendment right to remain silent.  In such a deposition, the only possible responses to certain questions would be to confess or to plead the Fifth Amendment.  It would be like the witchcraft trials where the accused witch is innocent if she drowns and guilty if she floats.

Furthermore, transcripts of witness depositions are rarely admissible in criminal trials.  Whenever possible, witnesses who gave depositions in the pretrial phase are summoned again for the trial.  If a lawyer wants to substitute a deposition transcript for live testimony, the lawyer must present a compelling reason why the witness cannot attend the trial, such as ill health, incarceration, or the risk of witness intimidation.

Accusers Can Still Give Depositions in Domestic Violence Cases for Now

Earlier this year, lawmakers introduced two bills that would restrict the use of depositions of certain types of witnesses in certain types of criminal cases, but neither SB 1208 nor HB 1037 passed.  The bills would have made it illegal to take the depositions of minors or of alleged victims of human trafficking, sex crimes, or domestic violence.  The bills did not pass because the majority of legislators believed that introducing additional restrictions on the discovery process of criminal cases would violate defendants’ rights to due process.  In practice, courts rarely ask minors who allegedly suffered sexual abuse, domestic violence, or human trafficking to testify.  The prosecution and defense can sufficiently build their respective cases based on other evidence, such as the testimony of adult family members of the alleged victims and physicians who examined or treated the minors shortly after the alleged crime.

Contact Our Criminal Defense Attorneys

A South Florida criminal defense lawyer can help you if you are facing criminal charges for domestic violence.  Contact Ratzan & Faccidomo in Miami, Florida for a free, confidential consultation about your case.




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