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:

witness on the stand for a deposition
  • 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:

  1. A witness dies before trial
  1. A witness is not in Nevada at the time of the trial – unless their departure was facilitated by the party requesting a deposition
  1. The witness is unable to testify due to sickness or physical/mental decline due to old age
  1. The witness is no longer of sound mind
  1. 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:

standing before the judge
  • 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.

  1. 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.
  1. Be Honest: Lying under oath can lead to criminal charges.
  1. 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.
  1. Ask to See Evidence: If the examiner references evidence before asking a question, ask to see it before responding.
  1. 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.

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