Deposition, the most commonly used discovery device, is a proceeding in which a witness is asked a series of questions which s/he has to answer orally under oath before a court reporter. In the U.S, the process happens during an examination before trial and outside a court room. In short, a deposition is a witness’s out of court testimony that is put down in writing for later use in court for discovery purposes. The person to be questioned is called the deponent.
At the federal level, Rule 30 of the Federal Rules of Civil Procedure describes the procedure for taking depositions in civil proceedings. The states have corresponding rules similar to the FRCP.
If the witness to testify is a party to the litigation, a notice should be given to the witness’s attorney. If the witness is not a party to the litigation, a subpeona should be issued calling the person to testify. The subpeona should clearly state the appropriate time and place where the deponent will be questioned.
A court reporter is required to be present during the questioning and s/he makes a verbatim stenographic record of everything that is said. The deponent is required to answer all questions and gestures are not allowed so that the court reporter can put everything in writing. The proceedings are initiated by the court reporter administering the oath, the same oath that is administered if testifying before a judge or jury. Today, many deposition proceedings are video taped. The deposition is then published in the form of a booklet and a copy is shared with the deponent and with any party to the litigation.
Usually, the deponent is represented by an attorney. The deponent is asked questions by the attorney for the other party, this is called direct examination. The deponent’s attorney can re-direct and the other attorneys can examine the deponent. Any party’s attorney can object to the questions asked for any of the following reasons:
- to assert a privilege
- to object to the form of the question asked.
If a deponent’s testimony in open court contradicts what s/he had stated at examination before trial, a party can introduce the deposition to impeach (or contradict) the witness.
Rule 15 of the Federal Rules of Criminal Procedure lays down the deposition process regarding criminal proceedings at the federal level. The states have corresponding provisions. The rules regarding notice and subpeona are the same in criminal and civil deposition processes. If a witness whose deposition is taken before trial is unable to appear at trial, the recorded deposition may be used to establish the witness’ testimony in lieu of the witness actually testifying. A defendant in a criminal case cannot be deposed without his consent because the Fifth Amendment to the Constitution grants the right not to give testimony against oneself.
The process of deposition taking has the following advantages:
- It gives all litigant parties knowledge of the evidence and avoids surprises at trial
- It also helps extract correct information fresh in memory, since the trial may happen months or years later.