Depositions, though common in civil litigation, are not often part of a criminal trial or criminal discovery process in Tennessee. A conventional method of pre-trial discovery in a civil case, depositions are used only under exceptional circumstances in Tennessee criminal cases, and are only supposed to be used to preserve testimony for use at trial, from a witness not likely to be able to testify at trial. Their purpose is limited to preserving evidence for trial, rather than for pre-trial discovery. The decision of whether to grant or deny a motion to depose a witness in a criminal case is discretionary with the trial court. But the trial court must follow narrow guidelines for determining when exceptional circumstances exist. In the recent case of State v. Gold, E2012-00387-CCA-R3-CD (Tenn.Crim.App. 8-15-2013), the Court of Criminal Appeals affirmed a trial court decision to allow the State to depose a witness who would be relocating outside the United States, and affirmed the use of the video at trial.

In the Gold case, the Defendant was charged with, and ultimately convicted of aggravated child abuse. One of the doctors who treated the child victim at the hospital planned to move to Saudi Arabia before the trial. The State successfully served a subpoena on the doctor, but then sought a video deposition, arguing it would be expensive to pay for travel expenses for the doctor’s return from Saudi Arabia. Over Defense objection, the trial court approved the deposition. The Defense argued that the State had not shown that the witness was unavailable for trial and that the inconvenience of her return was not an exceptional circumstance. The trial court decided to allow the deposition because it would be unable to compel the witness to return from Saudi Arabia. The Court of Criminal Appeals noted that the trial court had based its ruling on conclusory statements about the expense of bringing the witness back for trial, and suggested it would have been preferable to have more specific information in the record about whether the witness could return voluntarily, whether the move could be delayed until after trial, or what personal hardship may result from a delay of her move or return for trial. However, the Court concluded there was no prejudice from allowing the deposition, so no basis to remand for a new trial. The Court also addressed the Defendant’s right to confront witnesses, noting that because the Defendant and his counsel were able to be present for the deposition and cross-examine the witness there, confrontation rights had been satisfied.

For more information on when it may or may not be appropriate to depose a witness in a criminal case, contact The Lanzon Firm.