Page 95 - ACTL Journal Win24

sitions should be available in criminal cases, it is no answer that it is that way because we have always done it that way. It is time for reconsideration. Even original committee member Orfield advocated for change in his 1957 law re- view article, writing:
What about amending the Rule so as to adopt the wid- er scope of the Federal Rules of Civil Procedure? Much can be said for such a proposal. . . . [I]t should be the policy of the law to permit as broad a scope of inspec- tion and deposition in criminal cases as apply in civil trials. I cannot believe that anyone will be deprived of a right by the promulgation of a rule which seeks to pro- vide a means for unearthing facts, whether those facts are pertinent in a criminal prosecution or a civil action.
To be sure, any change in the rule to allow discovery deposi- tions would have to be carefully tailored to deal with witness safety, victim trauma, trial delay, and the consequences of the defendant’s fifth amendment privilege (which precludes deposing the defendant absent waiver). But these issues can be addressed – as many states have attempted in different ways – particularly with the aid of judicial supervision over the process. And the presence of tough issues is no reason
to avoid the debate entirely, or to throw out the proverbial “baby with the bathwater.”
It is time for careful study and a more nuanced approach to the problem, rather than the current “one-size-fits all” solution that simply eliminates discovery depositions altogether. Justice demands it. In the words of Justice
William J. Brennan:
Depositions have proved an important discovery tool in civil cases, and when a defendant’s freedom, rather than civil liability, is at stake, we should enhance rather than limit the discovery that is available. Neither witness statements nor an opportunity to cross-examine at a preliminary hearing, when one is held, provide an adequate substitute for a deposition.
William J. Brennan, The Criminal Prosecution: Sporting Event or Quest for the Truth? A Progress Report, 68 Washing-
ton University Law Quarterly 1, 12 (1990).
Criminal defendants are presumed innocent. They should not be presumed unentitled to a fair trial with real discovery.
Larry H. Krantz New York, NY
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