The Champion

September 2011 , Page 57 

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Practice Points: Taking an Effective Deposition in a Criminal Case

By Shaun Khojayan

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Taking an Effective Deposition in a Criminal Case

A witness is unavailable to come to court, but her testimony is needed. This is yet another obstacle the defense attorney must overcome while preparing the case. Inevitably, the attorney drafts motions or requests for letters rogatory to secure the deposition or oppose it. While there are good articles discussing the legal standards involved in securing or opposing depositions from unavailable witnesses,1 most attorneys have little experience with actually taking an effective deposition, particularly in the defense of a criminal case.

In federal court, Rule 15 of the Federal Rules of Criminal Procedure makes depositions available to both sides upon good cause shown in a motion to preserve material testimony from an otherwise unavailable witness. In state court, however, depositions in criminal cases are rare. Only a handful of states allow depositions in criminal cases. The states that permit such depositions have differing rules as to wh

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