Depositions in criminal cases – Typically in a criminal trial most of the evidence for a case is given to the defendant by the prosecutor through a process called criminal discovery. The defendant does not have to make a request for anything specific in order to get discovery. This is very different from how civil cases are handled in that, in civil cases the parties must request discovery from each other in a very specific fashion by means of interrogatories, requests for admission, and depositions.

In criminal trials, evidence is entered mostly though witness testimony, however there can be evidence presented by the defense from a deposition.  Criminal depositions are not a tool that is used often, nor discussed often, but they are available under North Carolina law. In this blog, we will discuss the topic of criminal depositions. Like all our blogs, this is intended for general informational purposes only, and not as a substitute for the advice and counsel of a criminal defense attorney.

What is a deposition?

A deposition is an out of court question and answer session taken while the witness is under oath just as he would if he or she were on the stand in a trial. A court reporter is present, and a transcript is made of the proceeding that can later be used in court.

*There are some differences and nuisances for depositions in civil trials that we will not discuss here.

Characteristics of criminal depositions

The law regarding criminal depositions falls under North Carolina General Statute 8-74. It allows for a criminal defendant to get a deposition from a witness prior to a trial if:

• The witness testimony would be material and important to the defense; and
• The witness would otherwise be unavailable at trial because the witness is infirm, physically incapacitated, or is a non-resident of North Carolina.

If this is utilized by the defense, the state must be given at least 10 days’ notice prior to the taking of the deposition. The state must also be allowed to send a prosecutor to be present and conduct a cross examination, if they so choose.

The purpose of these depositions is to enable the defense to have access to statements that they may introduce as evidence in the later criminal trial.

Exclusive right of the defense

Though criminal procedure tends to favor the government (in our humble opinion), this is one option that only applies to the defense. There is no statute in North Carolina that gives the state the right to initiate a deposition in a criminal action.

Generally, any witness testimony that the prosecution wants to introduce as evidence, must be done during the criminal trial.

If you have been charged with a crime and are need of a criminal defense attorney, contact us.