Doug Fredrick, a Springfield attorney who does family law, says the most unruly deposition he has heard of (but not witnessed) involved a divorcing husband and wife, both lawyers.
While the wife was being deposed, the tale goes, the husband got up and adjusted the blinds so the sunshine hit her square in the face.
She stopped her testimony, got up and adjusted the blinds.
He did it again.
She got up and adjusted the blinds a second time. But this time, on her return to her seat, she smacked him in the back of the head.
Depositions do get heated, Fredrick says.
Missouri is one of only five states that give lawyers unfettered ability to depose witnesses in criminal cases.
Whether you sue a company – or are sued yourself – or witness a crime, there’s a good chance you will receive a subpoena that orders you to give a deposition, a sworn statement made under penalty of perjury. In case you didn’t know, perjury is a crime.
“But I have never been afraid or scared. I have never had anything thrown.”
The deposition, used in civil and criminal proceedings, is a linchpin in our judicial system, yet few without a law degree know much about it.
The biggest surprise is that it’s an offer you can’t refuse.
You are not invited or asked to give a deposition. You receive a subpoena and are ordered to appear.
In other words: While you don’t have to talk to a police officer, you do have to testify when subpoenaed to give a deposition.
What is a deposition? It’s a sworn, out-of-court statement made under penalty of perjury.
Note the word “perjury.”
That’s a crime, although few are ever charged.
Surprise No. 2, at least in the state of Missouri: A subpoena ordering the recipient to give a deposition does not come from a judge. It does not even have to be approved by a judge.
It typically comes straight from a lawyer.
Most often, defense lawyers can only directly subpoena a witness for a deposition in criminal cases after a preliminary hearing, and a judge has found probable cause.
Lawyers are, in fact, considered officers of the court.
Missouri is one of only five states that give lawyers such unfettered ability to depose witnesses in criminal cases, says Rodney J. Uphoff, professor emeritus at the University of Missouri School of Law.
He served on the Missouri Supreme Court’s Criminal Procedure Committee.
Many states allow criminal depositions, but only in a more restrictive manner. The defense lawyer must first convince a judge that the deposition is necessary because the witness, for whatever reason, is unlikely to appear at trial.
In most of the nation, a criminal defense lawyer must ask a witness to talk, whether it’s at a deposition or not. The witness can refuse.
In federal court, rarely are defense lawyers allowed to depose witnesses in criminal cases, says David Bell, a defense lawyer in Kansas City.
“It’s even rarer than the appearance of Halley’s Comet,” Bell says.
Objections are few at depositions
Whether you’re Steve Bannon or Bill Cosby or just a guy who witnessed a crime or a woman trying to get through a divorce, you better show up when ordered to give a deposition.
If you don’t, you can be locked up for contempt of court.
Depositions are taken in what’s called the discovery phase of litigation. This is when both sides are trying to find out the facts of the case, share what the evidence will be, who the witnesses will be and what they likely will say at trial, should there be a trial.
A deposition casts a wide net. But only a fraction of the catch is admissible at trial.
Surprise No. 3: An attorney has far greater latitude in questioning a witness at a deposition than at a trial.
Fewer objections occur at depositions. Witnesses are expected to answer.
The standard in Missouri is that deposition questions must be “reasonably calculated to lead to the discovery of admissible evidence.”
The witness must respond even if the answer would not be admissible at trial.
Lawyers can ask “hearsay” questions that would be barred at trial, says Dan Patterson, Greene County prosecuting attorney.
“Hearsay” is when a witness repeats a statement made by someone else, but the witness has no personal knowledge of whether it’s true.
At a trial, the person who actually made the statement would be expected to testify and, therefore, would be subject to cross-examination.
“There are relatively few objections one can make in a deposition,” Patterson says.
“I can object if I think the question asked is simply annoying or oppressive to the witness — if it is essentially to harass the witness,” he says.
Of course, criminal defendants and their spouses are the exception to the rule. They do not have to give a deposition. They are protected by their constitutional right to not incriminate themselves.
Also, no witness at a deposition can be forced to provide privileged information discussed with their attorney.
(Criminal defense lawyers are quick to clarify that a prosecutor is not the attorney for a witness. Witnesses are allowed to bring their own attorney to depositions, but few do.)
Patterson says that for two main reasons, he and other prosecutors don’t often take depositions. It’s the defense lawyers who do.
The first reason is expense. A deposition costs several hundred dollars. The party that filed the subpoena must pay for the deposition. Each side can purchase a transcript from the court reporter.
Second, prosecutors work with law enforcement officers who interview witnesses, victims and suspects. Police then write reports that are provided to prosecutors and eventually defense lawyers.
Prosecutors already know what witnesses have said — at least what they have said to police and therefore rely less on depositions.
Three things to know about depositions
- You must give a deposition when ordered to do so.
- A judge does not have to approve the subpoena you receive to tell you to give a deposition.
- The opposing lawyer is allowed to ask you pretty much whatever he or she wants. And you must answer.
Cards on the table
Joe Passanise, a seasoned Springfield criminal defense attorney, says the use of depositions in criminal cases in Missouri levels the playing field.
Prosecutors already have the investigative resources of law enforcement, he says. Defense lawyers have the deposition.
Depositions are a main reason why the vast majority of criminal cases are settled before trial, he says.
“I try my cases in the depositions,” Passanise says. “In many cases, depositions help bring a conclusion to a case.”
Passanise says that when he goes to trial, he almost feels he has let his client down by not finding resolution through deposition.
Stacie Calhoun Bilyeu, also a Springfield criminal defense attorney, never misses a chance to confront at deposition someone likely to testify against a client.
“Some attorneys pick and choose who they will depose,” she says. “Every witness, I will depose. Period.
“If there is someone who I think is going to testify against my client, I do not think I’ve done my job unless I depose that person.”
Who attends a deposition?
Almost always, it is the witness, who plays the leading role, two attorneys (one for each side) and a freelance court reporter who produces an independent, accurate transcript.
If the witness is a child who allegedly has been abused, an advocate for the child might also be present.
The witness to be deposed has the right to have it done in the county where the witness lives. It is typically held in a lawyer’s office. Since the pandemic, many are conducted over a videoconferencing system, such as Zoom.
If it’s a criminal case in Greene County, the deposition is often taken in the victim/witness office of the Greene County Prosecuting Attorney.
Many lawyers consider the deposition a dress rehearsal for what might occur at trial. How strong is this witness? How credible? How strong is the state’s case?
“Normally, you get all the cards on the table,” Fredrick says. “And any lawyer who is worth his salt can pretty much figure out what the judge will do.”
“Possession of the marital kayak”
Depositions in family-law matters like divorce cover so much ground that Fredrick understands why some call them “fishing expeditions.”
“I once saw a motion for possession of the marital kayak,” he says.
Fredrick says civil depositions are more wide-ranging than criminal depositions because criminal depositions only look to the past: Was a crime committed? If so, who did it?
“Family law is not just whodunit. It is so many shades of gray. It looks at then, now and the future.
“A lot of things can happen during a divorce (proceeding), which can last one or two years. … You might have a parent who is doing really well, and then they get hooked on drugs and then they become the bad parent.”
In addition, he says, kids grow older and their interests change. The health of parents can falter. They can lose a job, remarry. A child can become emancipated.
Fredrick says, for example, it can be difficult to determine the income of someone who owns a small business. People might testify that they make little income and therefore should pay little child support.
In turn, Fredrick says, he issues a type of subpoena called a “subpoena duces tecum” that not only orders the other party to a deposition, but also demands that the person bring certain documents, such as their tax returns.
Depositions can be used to “unravel a small business” to find the appropriate level of child support, he says.
Although divorcing couples no longer must provide a reason for their failed marriage — “irreconcilable differences” will suffice — infidelity still plays a role in dividing marital assets, Fredrick says, and can be unearthed at a deposition.
Remember, a deposition question must only meet the threshold of whether it is “reasonably calculated to lead to the discovery of admissible evidence.”
It matters, Fredrick says, if one of the former partners in a divorce is diverting “marital assets,” like money, to a new romantic partner.
He, as a lawyer in the case, can inquire about that.
“I had a case where the guy was taking his 20-year-old girlfriend to various locations around the nation. It is ‘misconduct’ to misuse marital funds,” he says.
While lawyers have great latitude, it doesn’t mean they can ask anything at a deposition.
Fredrick says he would object, for example, if opposing counsel asked his client to name all sexual partners since the day of separation.
What happens when that rare objection is made?
After all, no judge is present at a deposition. Who makes the call when an attorney advises a witness to not answer a question?
In both civil and criminal depositions, the lawyers can agree to “certify the question.” This means the judge will be asked later to determine if the witness must answer.
If a deposition becomes too heated and too contentious, the court can appoint a “special master” to rein things in, Fredrick says.
The person assigned must be a lawyer with no involvement in the case.
Impeachment and perjury
A main reason attorneys depose adversarial witnesses is so they can impeach them later at trial.
Impeachment is when a lawyer catches a witness saying something different at trial than what was said prior. The purpose is to undermine the credibility of the witness.
The gold standard of impeachment is when both conflicting statements are made under oath.
“Every time everybody tells a story — especially if they are not telling the truth — they are going to tell that story differently,” says defense lawyer Bilyeu.
A lawyer’s goal at a deposition is not to badger and confront, she says, but to keep the witness talking.
“I am nice to people,” Bilyeu says. “The truth is that I have learned over the years that I am trying to get information out of people. I am trying to get that witness to talk to me. I don’t want them to clam up. I want that witness to be as comfortable as they can so they talk.”
Many times, Passanise says, after a witness cooperates with police, the witness thinks the interaction is over.
Passanise says that what is written in the police report is not necessarily what the witness says at a deposition.
And what witnesses say at the deposition is not necessarily what they say at trial.
“‘Lie’ is a harsh word for people to own up to,” Passanise says.
“Inevitably, I will go find out that they looked a person in the eye and told a lie. And I’ll ask jurors, ‘What makes you think they are telling the truth now?’”
Passanise deposes witnesses for reasons in addition to impeachment. He assesses how strong a witness will be at trial.
“What was their demeanor at the deposition?
“It is not so much what you say; it is how you say it.
“Do you or don’t you have credibility?”
He studies word choices. He focuses on “judgment” words. These are words, he says, that are conclusions, not neutral statements of fact.
Passanise tells the story of how a witness said at a deposition that an alleged victim was “told” by the defendant – Passanise’s client – to go to the lake, but in court, the same witness said the alleged victim was “ordered” by the defendant to go to the lake.
“That single word change alters the whole dynamic of the situation,” Passanise says.
Depositions are forever
Patterson, the prosecutor, says the vast majority of witnesses do their utmost to tell the truth under oath.
Rarely in Greene County is someone charged with perjury.
First, Patterson says, the fact in dispute must be material to the case.
For example, if a witness mistakenly says “Oak Street” instead of “Elm Street,” it is not perjury if the correct street name has little or nothing to do with proving the charge.
Second, Patterson says, if the inconsistency is crucial to the case, a prosecutor would have to prove the witness deliberately provided false testimony.
Third, he says, to prosecute someone for perjury, it is not enough to simply allege they were inconsistent.
“You have to be able to prove which statement is true and which is false.”
One thing witnesses might forget is that depositions are forever.
For example, defense lawyers will routinely look at the prior depositions of “expert witnesses,” who typically are high-priced witnesses with advanced degrees and/or training.
They testify on issues such as mental illness, insanity, gunshot residue or, for example, bloodstain pattern analysis.
An attorney can easily discredit an expert caught arguing both sides of the science, both sides of the issue, from both sides of his mouth.
The poor at a disadvantage
Private criminal defense lawyers like Joe Passanise or Stacie Calhoun Bilyeu have clients who can afford to pay for depositions.
“The use of discovery depositions in criminal cases is used unevenly in Missouri,” says Rodney Uphoff, professor emeritus at the University of Missouri School of Law.
Defendants who cannot afford a private attorney are represented by a public defender.
“The public defender system in Missouri is underfunded,” Uphoff says.
“We have public defenders who have so many cases and not enough time to do the investigations that a private lawyer could do.
“The reality is that public defenders can’t use this tool very often.”
The exception would be in death-penalty cases, where funds are available for public defenders to depose witnesses.
What if a witness dies before trial?
It is the prosecutor’s decision whether to seek what’s called a “deposition to preserve testimony” if there’s concern a witness will be unable to appear later at trial.
Either side can do this, but it’s typically the prosecutor.
This type of deposition is different; it must first be approved by a judge.
“It might be an elderly victim,” Patterson says. His concern as a prosecutor would be that the witness might not live to trial.
Or the witness might be someone in the service likely to be sent overseas.
Or it could be someone who, for whatever reason, has been reluctant to testify.
Usually, these types of depositions are videotaped with the idea of playing them at trial.
A judge’s approval is needed because a defendant has a Sixth Amendment right “to be confronted with the witnesses against him.”
In these instances, it would be up to Patterson to convince the judge it is likely the witness will be unavailable later.
If approved, the judge must ensure the defense has the opportunity to question the witness at the deposition to preserve testimony.
“In a deposition to preserve testimony, there is cross-examination by the defense attorney, as one might expect at trial, and also objections,” Patterson says.
Civil depositions are different, says lawyer Steve Garner, with the firm Strong-Garner-Bauer P.C.
Any deposition can be used at trial, he says.
That’s why, he says, most civil depositions are videotaped.
“You do not have to show that the witness is unavailable,” Garner says.
The other major difference between civil and criminal depositions is that the defendant in civil proceedings cannot claim a right to not incriminate themselves.
The exception would be if the witness is also being charged with a crime related to the civil proceedings or is a suspect in an alleged crime related to the civil proceedings.
Garner sues companies over issues of, for example, product liability, wrongful death or medical negligence. A defendant cannot avoid testifying at a deposition or at a trial based on a right to not incriminate himself.
“In a civil case, generally, the only time you can instruct a witness not to answer is if it would violate a privilege,” Garner says.
The main privilege is communications between an attorney and a client.
In criminal cases, either side can use trial information gathered by a deposition to preserve testimony.
Only the defense can use regular deposition testimony at trial should the witness die or, for some reason, not be available at trial — provided the judge approves its use.
Lawyers also need a judge’s approval before asking about the sexual history of a witness. Missouri has a Rape Shield Statute that protects witnesses from such questions.
But there are exceptions, Bilyeu says, that a judge can approve.
“Maybe there was an alternative source for a hymen not being intact. Or an alternative source for semen.
“And an affair might be a motive for someone to lie or to make something up.”
Finally, the Springfield Daily Citizen asked if a civic-minded citizen who witnessed a serious accident or a crime and willingly talked to police should hire an attorney if ordered later to give a deposition.
No, says Patterson.
“You don’t need an attorney just because you saw an accident.”
But if the lawyers have set the deposition for a time that, for example, conflicts with the wedding of the witness’s daughter, and they refuse to change it, Patterson says, the witness might want to hire counsel to get that date changed.
Similarly, Bilyeu says, the witness in this example should not have to hire a lawyer.
“You should not need one if you are not accused of doing something wrong. If you are just a witness, you are not really putting yourself out there.”
But she also elaborated.
“If somebody says that you are a liar, then that could be a crime.”
It also might matter what you were doing and where you were at the time you witnessed the accident or crime.
“If there is any inkling at all that this thing could get turned on you somehow, then you might need to have a lawyer.”
Learn more about depositions
The American Bar Association provides a brief, general explanation of depositions at How Courts Work: Discovery