How Do Depositions Work in Criminal Cases?

Going to trial can be exhausting, time-consuming, and confusing. When you are facing criminal charges, it can be frightening, too. The law is full of little intricacies, exceptions to rules, and rules without exceptions. However frustrating this may be, this level of detail is meant to protect you and your rights – as long as you use it properly. People who may try to represent themselves or rush into choosing their attorney are likely not taking full advantage of the legal proceedings available to them; depending on the case, this can mean the difference between freedom and time behind bars.

One of those tools is the deposition. Today, we discuss how depositions work in a criminal case, and how they can help.

What is a deposition?

A deposition is a witness’ sworn testimony, usually taken outside of court, meant to provide attorneys with as much information as possible during discovery (the name for the formal process of exchanging information about witnesses and evidence). Your attorney may depose people on your behalf if they may have valuable insight into the alleged incident. This may be done orally or in written format. While depositions are not always admissible in a criminal trial, there are exceptions to that rule. Per the Texas Code of Criminal Procedure, Article 39.12 (2019), a deposition may be read in court if:

• The witness resides out of state, or has moved out a state since the deposition was taken
• The witness died before the trial
• The witness is infirm
• The witness was “prevented from attending the court through the act or agency of the defendant; or by the act or agency of any person whose object was to deprive the state or the defendant of the benefit of the testimony”

Under the same law, “When the deposition is sought to be used by the state, the oath may be made by any credible person. When sought to be used by the defendant, the oath shall be made by the defendant in person.”

There is a process in place to seek an exception to allow a deposition for a criminal case, which involves your attorney filing an affidavit and application that states the reason for the deposition request. Then, after notifying the opposing party, the court will hold a hearing to judge if there is good enough cause for a deposition. If approved, the deposition may be taken by either the state or the defendant.

When would a deposition be helpful in a criminal case?

If, for example, you are facing charges of felony assault, you may be able to depose the prosecution’s witnesses, which allows your attorney to find weak spots in their case. If there is any sign of collusion between witnesses, leading to events being exaggerated or facts stretched, a deposition catching a slip-up can make it suddenly evidence in court. Considering the highest degrees of felony assault can get you life in prison, anything weakening the opposition’s case and their witnesses can only help.

What kinds of questions will the prosecutors ask during a deposition?

As criminal defense attorneys, part of our job is to prepare clients for how a trial will go, if it reaches that point. This is includes preparing the client and the witnesses for the defense to answer questions, either on the stand or in a deposition. Some of the more common criminal deposition questions will include:

• Have you ever been arrested/been a defendant in another case? The prosecution wants to prove that the defendant and his/her witnesses are unreliable, and that prior offenses speak to credibility. We remind our clients and witnesses that they muse be honest, but that they do not need to give answers to unasked questions.
• Have you ever testified in court and/or deposition before? Again, this could speak to credibility, and is a way of finding out if a person has been involved in any lawsuits or criminal cases.
• What is your relationship to the defendant/ alleged victim? The prosecution will attempt to prove bias here – that the defendant or witness’s prior relationship (if one existed) to the alleged victim would make the defendant or witness unreliable, or potentially more prone to have committed the crime.
• Have you spoken about this incident/posted about this incident on the internet? Everything we say and write online stays in the records forever – period. And it can be used against a defendant or a witness in a court of law. If a defendant, for example, posted online that he or she hated the alleged witness, prosecutors will use those statements against him or her if possible.

The time of a deposition can vary, as can the questions asked, but these four are basically a given.

Remember that honesty is always the best policy. If you are deposed and you lie, that will almost certainly be introduced as evidence during a trial, whether you are the defendant or a witness. Never guess at an answer, or answer in a way that you think someone wants you to answer; admit that you do not know. Finally, don’t answer questions that are not asked. Stick to the facts without embellishment.

Criminal charges are always a scary thing to face, but a skilled Killeen criminal defense attorney can help ease your fears. Depending on the specifics, a deposition may or may not be admissible, but that does not mean they’re invaluable. At the Mary Beth Harrell Criminal Defense and DWI Lawyers, our Killeen criminal defense attorneys want to protect your freedoms by any means possible, with no secrets or gimmicks. We’ll keep you informed and involved every step of the way — because we take your rights just as seriously as you do. To learn more, call us today at 254-680-4655 or via our contact form. We maintain offices in Killeen and Copperas Cove, for your convenience.