ARE DEPOSITIONS ALLOWED IN CRIMINAL CASES IN NEVADA?
December 1, 2021
A deposition is sworn, oral testimony, subject to cross-examination, taken before a court reporter. While depositions routinely occur in civil cases, they are sometimes permitted in Nevada criminal cases. However, they’re only allowed under specific circumstances. The purpose of a deposition is to obtain a face-to-face oral statement made by a witness (outside of the court) under oath.
A judge may permit a criminal deposition transcript if it’s impossible for a witness to give their testimony in person at a trial. Depending upon the circumstances, that testimony can be used as evidence in Nevada criminal cases.
Overall, what is the purpose of a deposition? Its purpose is to find out what a witness knows about a criminal case, how/if they were involved, and preserve testimony for use at trial. Depositions are typically reserved for older and vulnerable populations, but exceptions apply.
What Happens At A Criminal Deposition?
A deposition is essentially a question and answer session that takes place somewhere other than a courtroom. During a deposition in a criminal case, the following will occur:
- The prosecution and defense have an opportunity to gather facts from the deponent to either bolster their case or undermine the other party’s case
- A court reporter transcribes the deposition word-for-word
- The court-reporter and deponent signs an affidavit to certify the accuracy of the transcript
- The transcript may be used as evidence depending on the circumstances
When Can A Deposition Be Taken?
NRS 174.175 outlines the conditions required for a deposition in criminal cases. Generally, depositions can be taken under the following circumstances:
- An older person (over 70) or a member of a vulnerable population as outlined in NRS 200.5092 who cannot attend a court proceeding
- The witness’s testimony is material and necessary to the case
- Taking the deposition will avoid a “failure of justice”
- The vulnerable or older person has “good cause” to not attend a trial or hearing, or
- The witness is “committed for failure to give bail to appear to testify at a trial or hearing”
When Can A Deposition Be Used?
Under NRS 174.215, depositions can be used at trial or in any hearing under the following circumstances:
- A witness dies before trial
- A witness is not in Nevada at the time of the trial – unless their departure was facilitated by the party requesting a deposition
- The witness is unable to testify due to sickness or physical/mental decline due to old age
- The witness is no longer of sound mind
- The witness can’t otherwise be compelled (i.e., subpoenaed) to testify in court
What Do I Need To Know Before A Deposition?
Depositions can be stressful for witnesses and defendants. With that in mind, listed below are a few things you should know before a deposition:
- Testimony offered in a deposition is given under oath. That means that lying could lead to criminal consequences
- A judge can deny a deposition request or disallow it from entering evidence
- The prosecution is not bound by the same examination rules as they are in a trial – that means that they can ask “leading questions”
- Video depositions are allowed under certain conditions
- An attorney can object to the admissibility of a deposition into evidence depending on the circumstances
What Should You Not Say During A Deposition?
What you should or shouldn’t say during a deposition depends on the circumstances of the case. Generally, a few things a deponent should avoid during a deposition include:
- Offering more information than requested
- Making assumptions
- Using profane or aggressive language
- Making light of the crime
- Providing confidential information
- Parsing or paraphrasing conversations
Tips For Answering Questions At A Deposition
Depositions happen outside the court, but they are still a legal procedure that can lead to serious consequences. With that in mind, listed below are a few tips to keep in mind before being deposed.
- Prepare for the deposition: For most people, interrogatory interviews are not natural. However, you can prepare yourself by practicing questions, role-playing with your attorney, and reviewing the facts.
- Be Honest: Lying under oath can lead to criminal charges.
- Speak Carefully: Remember, a court reporter records every word you speak. That means that mute gestures like shaking your head in response to a question are not recorded. Be sure to speak loudly, clearly, and carefully.
- Ask to See Evidence: If the examiner references evidence before asking a question, ask to see it before responding.
- Go At Your Own Pace: Sometimes, an examiner will attempt to rush or fluster you by interrupting and interjecting. Be sure to stay calm, verbally acknowledge their interruption, and give your full response.
Author: Tony Abbatangelo, Esq.
Anthony “Tony” L. Abbatangelo Esq. is a smart, compassionate attorney that knows how to get results and is no stranger to the courtroom. Tony and his team are ready to assist you with your criminal and DUI defense.