Missouri Law Redeposing Witnesses Over and Over Again
Doug Fredrick, a Springfield chaser who does family law, says the nigh unruly deposition he has heard of (but non witnessed) involved a divorcing husband and wife, both lawyers.
While the wife was being deposed, the tale goes, the hubby got up and adjusted the blinds so the sunshine hitting her square in the confront.
She stopped her testimony, got up and adjusted the blinds.
He did information technology again.
She got upward and adjusted the blinds a second fourth dimension. Just this time, on her return to her seat, she smacked him in the back of the head.
Depositions practice become heated, Fredrick says.
Why care?
Missouri is ane of only five states that give lawyers unfettered ability to depose witnesses in criminal cases.
Whether you sue a visitor – or are sued yourself – or witness a crime, there's a good chance you will receive a subpoena that orders you to give a deposition, a sworn statement made under punishment of perjury. In case you didn't know, perjury is a crime.
"But I have never been afraid or scared. I have never had anything thrown."
The degradation, used in civil and criminal proceedings, is a linchpin in our judicial organization, nevertheless few without a law degree know much nigh it.
The biggest surprise is that it's an offer you tin't refuse.
You are not invited or asked to give a degradation. Y'all receive a subpoena and are ordered to appear.
In other words: While you don't have to talk to a police force officer, you lot do have to show when subpoenaed to give a deposition.
What is a deposition? Information technology's a sworn, out-of-court statement made nether punishment of perjury.
Annotation the word "perjury."
That's a law-breaking, although few are ever charged.
Surprise No. 2, at least in the land of Missouri: A amendment ordering the recipient to give a degradation does not come from a judge. Information technology does non even take to be approved by a approximate.
Information technology typically comes direct from a lawyer.
Most frequently, defense lawyers tin just directly amendment a witness for a deposition in criminal cases after a preliminary hearing, and a estimate has found probable cause.
Lawyers are, in fact, considered officers of the court.
Missouri is one of just five states that give lawyers such unfettered power to depose witnesses in criminal cases, says Rodney J. Uphoff, professor emeritus at the Academy of Missouri School of Police.
He served on the Missouri Supreme Courtroom'southward Criminal Procedure Committee.
Many states allow criminal depositions, but simply in a more than restrictive way. The defense force lawyer must first convince a guess 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 degradation or non. The witness can decline.
In federal court, rarely are defense lawyers allowed to depose witnesses in criminal cases, says David Bell, a defense lawyer in Kansas City.
"Information technology'south even rarer than the appearance of Halley'due south Comet," Bell says.
Objections are few at depositions
Whether you lot're Steve Bannon or Bill Cosby or merely a guy who witnessed a criminal offense or a woman trying to go through a divorce, you better evidence upwards when ordered to give a deposition.
If you don't, you tin be locked up for contempt of court.
Depositions are taken in what's called the discovery phase of litigation. This is when both sides are trying to detect out the facts of the case, share what the bear witness will be, who the witnesses will exist and what they likely will say at trial, should in that location be a trial.
A degradation casts a wide 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 answer.
The standard in Missouri is that deposition questions must be "reasonably calculated to lead to the discovery of admissible evidence."
The witness must answer even if the respond would non be admissible at trial.
Lawyers can inquire "hearsay" questions that would be barred at trial, says Dan Patterson, Greene County prosecuting attorney.
"Hearsay" is when a witness repeats a statement made by someone else, merely the witness has no personal knowledge of whether information technology'south truthful.
At a trial, the person who really made the statement would exist expected to testify and, therefore, would be bailiwick to cross-test.
"There are relatively few objections one can make in a deposition," Patterson says.
"I can object if I call up the question asked is simply annoying or oppressive to the witness — if it is essentially to harass the witness," he says.
Of course, criminal defendants and their spouses are the exception to the rule. They do not have to requite a deposition. They are protected by their constitutional right to not incriminate themselves.
Also, no witness at a deposition tin can be forced to provide privileged information discussed with their attorney.
(Criminal defence force lawyers are quick to clarify that a prosecutor is not the attorney for a witness. Witnesses are allowed to bring their ain attorney to depositions, but few do.)
Patterson says that for two main reasons, he and other prosecutors don't often take depositions. Information technology's the defense lawyers who practice.
The kickoff reason is expense. A degradation costs several hundred dollars. The party that filed the subpoena must pay for the degradation. Each side can buy a transcript from the court reporter.
Second, prosecutors work with police enforcement officers who interview witnesses, victims and suspects. Police force so write reports that are provided to prosecutors and eventually defense lawyers.
Prosecutors already know what witnesses have said — at least what they have said to police and therefore rely less on depositions.
Three things to know almost depositions
- Y'all must give a deposition when ordered to do so.
- A guess does non have to corroborate the subpoena yous receive to tell yous to requite a deposition.
- The opposing lawyer is allowed to ask you pretty much whatever he or she wants. And you must answer.
Cards on the tabular array
Joe Passanise, a seasoned Springfield criminal defence attorney, says the utilize of depositions in criminal cases in Missouri levels the playing field.
Prosecutors already have the investigative resource of law enforcement, he says. Defense lawyers have the deposition.
Depositions are a main reason why the vast majority of criminal cases are settled before trial, he says.
"I try my cases in the depositions," Passanise says. "In many cases, depositions help bring a determination to a case."
Passanise says that when he goes to trial, he nearly feels he has permit his client down past not finding resolution through deposition.
Stacie Calhoun Bilyeu, also a Springfield criminal defense attorney, never misses a hazard to confront at deposition someone likely to bear witness confronting a client.
"Some attorneys pick and cull who they will depose," she says. "Every witness, I will depose. Menses.
"If in that location is someone who I think is going to testify against my client, I do not remember I've done my task unless I depose that person."
Who attends a degradation?
Almost always, it is the witness, who plays the leading role, ii 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 abet for the child might also be present.
The witness to exist deposed has the right to have it washed 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 equally Zoom.
If it's a criminal example in Greene County, the degradation is often 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 strong is this witness? How credible? How strong is the state's case?
"Normally, yous get all the cards on the tabular array," Fredrick says. "And any lawyer who is worth his salt tin pretty much figure out what the estimate will do."
"Possession of the marital kayak"
Depositions in family-law matters like divorce comprehend so much footing that Fredrick understands why some call them "line-fishing expeditions."
"I once saw a motion for possession of the marital kayak," he says.
Fredrick says ceremonious depositions are more wide-ranging than criminal depositions because criminal depositions only expect to the past: Was a crime committed? If so, who did it?
"Family law is non but whodunit. It is so many shades of grayness. Information technology looks at so, now and the future.
"A lot of things can happen during a divorce (proceeding), which can terminal one or 2 years. … You might have a parent who is doing really well, so they get hooked on drugs and so they become the bad parent."
In addition, he says, kids grow older and their interests change. The health of parents can stammer. They can lose a job, remarry. A kid can become emancipated.
Fredrick says, for example, information technology tin can be hard to determine the income of someone who owns a small-scale business. People might testify that they brand trivial income and therefore should pay little kid support.
In plow, Fredrick says, he issues a type of subpoena called a "amendment duces tecum" that non only orders the other party to a deposition, but also demands that the person bring certain documents, such as their tax returns.
Depositions can be used to "unravel a minor business concern" 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 assets, Fredrick says, and tin exist unearthed at a deposition.
Remember, a deposition question must only meet the threshold of whether it is "reasonably calculated to lead to the discovery of admissible prove."
It matters, Fredrick says, if ane of the sometime partners in a divorce is diverting "marital avails," like coin, to a new romantic partner.
He, every bit a lawyer in the case, tin inquire about that.
"I had a case where the guy was taking his xx-year-former girlfriend to various locations around the nation. It is 'misconduct' to misuse marital funds," he says.
While lawyers have swell latitude, information technology doesn't mean they tin inquire anything at a deposition.
Fredrick says he would object, for instance, if opposing counsel asked his client to proper noun all sexual partners since the solar day of separation.
What happens when that rare objection is made?
Later on all, no judge is nowadays at a deposition. Who makes the call when an attorney advises a witness to not respond a question?
In both civil and criminal depositions, the lawyers can agree to "certify the question." This ways the judge will be asked afterward to determine if the witness must respond.
If a degradation becomes too heated and besides contentious, the court can appoint a "special master" to rein things in, Fredrick says.
The person assigned must be a lawyer with no interest in the case.
Impeachment and perjury
A master reason attorneys depose adversarial witnesses is and then they can impeach them later on at trial.
Impeachment is when a lawyer catches a witness maxim something different at trial than what was said prior. The purpose is to undermine the credibility of the witness.
The gilt standard of impeachment is when both conflicting statements are made under oath.
"Every fourth dimension everybody tells a story — especially if they are not telling the truth — they are going to tell that story differently," says defense force lawyer Bilyeu.
A lawyer'south goal at a deposition is not to annoy and confront, she says, but to keep the witness talking.
"I am overnice to people," Bilyeu says. "The truth is that I take learned over the years that I am trying to get information out of people. I am trying to get that witness to talk to me. I don't want them to clam upwardly. I desire that witness to be as comfortable every bit they can and so they talk."
Many times, Passanise says, afterward a witness cooperates with police, the witness thinks the interaction is over.
It'southward not.
Passanise says that what is written in the police report is not necessarily what the witness says at a deposition.
And what witnesses say at the deposition is non necessarily what they say at trial.
"'Lie' is a harsh give-and-take for people to own upwardly to," Passanise says.
"Inevitably, I will go find out that they looked a person in the eye and told a lie. And I'll enquire jurors, 'What makes y'all think they are telling the truth now?'"
Passanise deposes witnesses for reasons in improver to impeachment. He assesses how strong a witness will be at trial.
"What was their demeanor at the deposition?
"Information technology is non so much what you say; it is how yous say it.
"Do you or don't yous 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 customer – to go to the lake, merely in court, the aforementioned witness said the alleged victim was "ordered" by the accused to become to the lake.
"That single word change alters the whole dynamic of the situation," Passanise says.
Depositions are forever
Patterson, the prosecutor, says the vast bulk of witnesses do their utmost to tell the truth under oath.
Rarely in Greene County is someone charged with perjury.
Starting time, Patterson says, the fact in dispute must exist textile to the case.
For example, if a witness mistakenly says "Oak Street" instead of "Elm Street," it is not perjury if the right street proper name has trivial or null to do with proving the charge.
Second, Patterson says, if the inconsistency is crucial to the case, a prosecutor would have to prove the witness deliberately provided false testimony.
Third, he says, to prosecute someone for perjury, information technology is not plenty to simply allege they were inconsistent.
"You lot have to be able to bear witness which statement is truthful and which is fake."
One thing witnesses might forget is that depositions are forever.
For example, defense force lawyers will routinely look at the prior depositions of "adept witnesses," who typically are high-priced witnesses with advanced degrees and/or training.
They testify on issues such as mental affliction, insanity, gunshot residual or, for example, bloodstain pattern analysis.
An attorney can easily ignominy an skilful caught arguing both sides of the scientific discipline, both sides of the issue, from both sides of his mouth.
The poor at a disadvantage
Private criminal defence force lawyers like Joe Passanise or Stacie Calhoun Bilyeu have clients who tin 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 School of Law.
Defendants who cannot afford a individual attorney are represented past a public defender.
"The public defender system in Missouri is underfunded," Uphoff says.
"Nosotros have public defenders who accept so many cases and not enough fourth dimension to practise the investigations that a private lawyer could exercise.
"The reality is that public defenders can't utilise this tool very ofttimes."
The exception would be in death-punishment cases, where funds are available for public defenders to depose witnesses.
What if a witness dies before trial?
It is the prosecutor's decision whether to seek what's called a "deposition to preserve testimony" if there'south business a witness will be unable to appear afterwards at trial.
Either side tin can do this, simply it'southward typically the prosecutor.
This type of degradation is unlike; it must start be approved by a judge.
"It might be an elderly victim," Patterson says. His concern equally a prosecutor would be that the witness might not live to trial.
Or the witness might be someone in the service likely to exist sent overseas.
Or it could be someone who, for whatever 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 considering a defendant has a Sixth Subpoena correct "to be confronted with the witnesses against him."
In these instances, it would be up to Patterson to convince the guess information technology is likely the witness volition exist unavailable later.
If approved, the judge must ensure the defense has the opportunity to question the witness at the deposition to preserve testimony.
"In a deposition to preserve testimony, there is cross-examination by the defence chaser, as one might expect at trial, and also objections," Patterson says.
Civil depositions are different, says lawyer Steve Garner, with the firm Strong-Garner-Bauer P.C.
Any deposition can be used at trial, he says.
That's why, he says, almost civil depositions are videotaped.
"You do non take to prove that the witness is unavailable," Garner says.
The other major difference between civil and criminal depositions is that the defendant in civil proceedings cannot claim a right to not incriminate themselves.
The exception would exist if the witness is besides existence charged with a crime related to the civil proceedings or is a suspect in an alleged crime related to the civil proceedings.
Garner sues companies over issues of, for example, product liability, wrongful expiry or medical negligence. A defendant cannot avoid testifying at a deposition or at a trial based on a right to not incriminate himself.
"In a ceremonious instance, generally, the only time y'all can instruct a witness non to answer is if it would violate a privilege," Garner says.
The main privilege is communications between an attorney and a client.
In criminal cases, either side tin use trial information gathered past a deposition to preserve testimony.
But the defence can use regular deposition testimony at trial should the witness dice or, for some reason, not be available at trial — provided the judge approves its use.
Lawyers also need a judge'due south approving before request about the sexual history of a witness. Missouri has a Rape Shield Statute that protects witnesses from such questions.
Just there are exceptions, Bilyeu says, that a estimate can approve.
"Possibly there was an culling source for a hymen non being intact. Or an alternative source for semen.
"And an thing might be a motive for someone to lie or to make something up."
Finally, the Springfield Daily Citizen asked if a civic-minded citizen who witnessed a serious blow or a crime and willingly talked to police should hire an attorney if ordered later to give a deposition.
No, says Patterson.
"You don't need an attorney just because y'all saw an accident."
But if the lawyers take set the deposition for a time that, for example, conflicts with the wedding of the witness's daughter, and they refuse to change it, Patterson says, the witness might want to hire counsel to get that engagement changed.
Similarly, Bilyeu says, the witness in this case should not take to hire a lawyer.
"You should not need one if you lot are not accused of doing something wrong. If y'all are just a witness, you are not really putting yourself out there."
But she also elaborated.
"If somebody says that y'all are a liar, then that could be a criminal offense."
It also might matter what you lot were doing and where you were at the time yous witnessed the accident or crime.
"If there is any inkling at all that this matter could go turned on you lot somehow, then you might need to have a lawyer."
Acquire more about depositions
The American Bar Clan provides a brief, full general explanation of depositions at How Courts Piece of work: Discovery
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Source: https://sgfcitizen.org/springfield-government/missouris-unusual-reliance-on-depositions-and-what-you-should-know/
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