Page 94 - ACTL Journal Win24

procure perjured testimony in order to set up a false defense. Another result of full discovery would be that the criminal defendant who is informed of the names of all of the State’s witnesses may take steps to bribe or frighten them into giving perjured testimony or into ab- senting themselves so that they are unavailable to testify.
The prohibition against discovery depositions has not changed since the enactment of the criminal rules in 1944 (despite other amendments to the language of Rule 15). And there has been little to no organized pushback. The principle that a criminal defendant has no deposition rights has be- come so entrenched that it feels almost blasphemous to sug- gest that the rule be otherwise. The absence of depositions in federal criminal cases has become an immutable truth.
But why? Based on my experience in trying both civil and criminal cases in federal courts, the absence of depositions in criminal cases does great harm to the truth-seeking process. In civil cases, the ability to conduct depositions is the great
Much can be learned from thirteen states who have rejected the federal model and do allow depositions in criminal cas- es, with varying limitations. There is great variation among these state rules: some provide discovery depositions as of right, while some require an application to the court (with varying standards as to when such applications should be granted); some permit the defendant to be present at the deposition while others don’t; some provide for depositions only if the witness will not sit for a voluntary interview with the defense; and some provide for defense depositions only. But seven states – Vermont, Florida, Indiana, Missouri, Iowa, North Dakota and New Mexico – allow for deposi- tions as a matter of right without prior court approval. Six states – New Hampshire, Texas, Arizona, Nebraska, Mon- tana and Washington – allow for discovery depositions upon leave of court for good cause. Bryan Altman, Can’t
We Just Talk About This First?: Making the Case for the Use of Discovery Depositions In Criminal Cases, 75 Ark. L. Rev.
1, 38 (2022).
But while there is great variation among the rules adopt- ed, there is a unifying principle: these states have deter- mined that the benefits of allowing at least some discovery depositions – with appropriate restrictions – outweigh the dangers cited by those who support a blanket prohibition against discovery depositions in criminal cases. In a 1989
With views like these it is little wonder that the rules ul- timately adopted became a vehicle for swift conviction, not one to create a level playing field where the defense and prosecution had equal discovery rights. There was an underlying presumption of guilt and an unfounded belief that defendants would misuse any broader dis- covery rights given to them.
equalizer. Depositions allow both sides to uncover the facts needed to present the full picture at trial. Without depo- sitions, the factfinder is far worse situated to evaluate the evidence and reach a just result.
The absence of depositions makes federal criminal trials lop- sided events characterized by a cavernous information im- balance. One side knows everything that a prospective wit- ness will say on a subject, while the other side knows little if anything. One side can tiptoe around the landmines, while the other side can’t risk getting anywhere near a possible ex- plosion. This does not further the truth-seeking process or make for a fair trial. Just the opposite. The prosecution has done all the investigating, and defense counsel is relegated to taking largely blind pot shots at the government’s carefully choreographed narrative.
To make matters worse, this problem is largely invisible to participants other than defense counsel. It can often not be seen by prosecutors or even the judge. To understand the problem requires getting inside defense counsel’s mind. It requires knowing the questions defense counsel does not ask because the answers are unknown. It requires knowing the witnesses defense counsel does not call because they have re- fused to interview. These invisible problems are the real cost of the absence of depositions. And they underscore the need for reconsideration.
study conducted in Florida, a commission created to eval- uate the deposition rules that had been in effect since 1972 concluded: “[discovery depositions in criminal cases] make a unique and significant contribution to a fair and econom- ically efficient determination of factual issues in the crim- inal process. . . . [Criminal discovery depositions] should not be abolished or significantly curtailed.” Mary Prosser, Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities, 2006 Wisconsin Law Review 541, 613 (quoting the study). And while there are currently bills pending in Florida to prohibit the deposition of children and other vulnerable witnesses in criminal cases, the basic right to discovery depositions has remained in place for fifty years. See Jim Ash, Defense Attorneys Wary of Bill to Limit Some Depositions in Criminal Cases, The Florida Bar News (March 9, 2023)(floridabar.org); John F. Yetter, Discovery Depositions in Florida Criminal Proceedings: Should They Survive?, 16 Fla. St. U. L. Rev. 675 (1988). In all thirteen of these states, the availability of depositions has remained in effect and the fears of deposition opponents – such as Holtzoff and Vanderbilt – have not been realized.
There is an old proverb: No matter how far you have trav- elled the wrong road, turn back. While there are arguments on both sides of the debate over whether discovery depo-
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