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    Wisconsin Lawyer
    December 01, 2014

    As I See It
    Finding the Middle Ground? Allowing Depositions in Criminal Cases

    Although proponents of and challengers to the idea of allowing attorneys to depose witnesses argue legitimate points, the author asserts that when tailored appropriately, depositions in criminal cases may improve the bench, bar, and practice.

    Kaivon Yazdani

    cameraIn Wisconsin, a criminal defendant cannot compel a crime victim to submit to a pre-trial interview or deposition.1 In fact, Wisconsin’s criminal procedure code prohibits the deposition of any witness, unless it appears that 1) the prospective witness may be unable or is prevented from attending a criminal trial or hearing; 2) the prospective witness’s testimony is material; and 3) it is necessary to take the prospective witness’s deposition in order to prevent a failure of justice.2 Even after the moving party meets its burden of proof, the trial court maintains discretion in granting a motion to take a deposition. This differs greatly from civil cases, in which any party may depose any witness regarding any topic if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.3

    Wisconsin’s Criminal Deposition History

    Wisconsin has never unrestrictedly allowed depositions in criminal cases. The notion has been considered in the past, but lacked significant interest and force to come to fruition. U.W. Law School Professor David Shultz, a longtime member of the Criminal Procedure Committee, affirms “there was never a strong interest by the original committee to get a bill passed allowing for depositions in criminal cases.” The current committee, however, is different. At the July 15 public hearing, the committee spent the entire morning discussing the topic, hearing from an array of guest speakers. To date, the current push seems to be at its strongest, but still faces rational opposition.

    Opposition from the State and Victim Advocates

    Challengers to the idea argue legitimate points, with cost being the primary point of contention. On their face, deposition costs include fees for attorneys, process servers, court reporters, and transcripts. However, the costs extend to police departments, deputies, court clerks, witnesses from the State Crime Lab, and other miscellaneous court costs, all of which affect taxpayers. For example, if a police officer is subpoenaed for a deposition, the officer may be required to appear on a date and time that conflicts with his or her regular work shift. That results in at least one less officer patrolling the streets, and the police department having to fill that void with a different officer – an extra cost for the department. Alternatively, an officer could be scheduled for a deposition on his or her day off, resulting in the officer being paid overtime. The funds to pay officers overtime also come from taxpayers. Consequentially, police department budgets will be stretched even thinner.

    Kaivon YazdaniKaivon Yazdani, Nova Southeastern Univ. 2008, is an associate at Nistler & Condon s.c., Wauwatosa, and focuses on criminal defense and civil rights violations. He formerly was a prosecutor in both Broward County, Fla., and Milwaukee County,  where he had the opportunity to witness and compare the impact of prosecution with and without depositions.

    The court system will also be financially affected. Undeniably, taking depositions causes case delays. Factors that may cause delays include unavailable or uncooperative witnesses, and the conflicting schedules of the defense attorney and prosecutor. These delays increase the number of open cases, which results in additional court time. This means more tax dollars being spent on court resources, such as judges, clerks, court reporters, deputies, storage costs, and potentially jurors. The trickle-down effect of allowing depositions in criminal cases is exponential.

    Prosecutors and victim advocates also legitimately express concerns about the negative impact on victims. Victims may be “revictimized” each time they are required to speak about the incident that caused the defendant to be arrested. Prosecutors fear that victims or witnesses may feel harassed or intimidated by the deposition process and subsequently fail to appear at trial to avoid further stress. This raises great concern for prosecutors because the Constitution’s Confrontation Clause prohibits a deposition from being read into the record.4

    Another concern for prosecutors is lack of time. During the public hearing on July 15, an attorney from Iowa testified that in a homicide case he was involved with, more than 30 witnesses were deposed. Certainly, with an increasing caseload, prosecutors are concerned they will not have time to manage their caseload, conduct motion hearings, try cases, and attend depositions.

    The Problem from a Defendant’s Standpoint

    The contrary view also raises legitimate points. Without the ability to depose witnesses, defense attorneys are limited to using open-records requests and investigators to gather information. While these methods are useful and important, their effectiveness is often inadequate. Open-records requests provide limited information, and investigators are not lawyers.

    In considering depositions in criminal cases, we must conduct a cost-benefit analysis, enact rules to control the use of depositions to avoid abuse, and ultimately strive for equality and fairness.

    Additionally, investigators’ efforts may be hamstrung by uncooperative civilian witnesses. There is no avenue to compel civilian witnesses or victims to cooperate with a defense attorney’s investigation; they are not required to answer questions.5 If the witness refuses to cooperate, the defense is bound by that refusal. Even more problematic is the attempt to question police officers and detectives. An investigator’s attempt to obtain a statement or other evidence from a police officer is usually futile. That is highly problematic because investigating officers and detectives often possess the most information about a case. While the defendant is in possession of police reports, the reports do not contain all the facts. Additionally, the reports are written by officers who often are biased and ordinarily not neutral witnesses.

    The effect is that defendants often walk into court on the day of trial without ever speaking to a single witness. While defense attorneys may have an idea of what the testimony will be, they certainly do not know for certain. For a defense attorney, preparing for cross-examination is preparing for unpredictable and unknown testimony. A defense attorney’s ability to adequately prepare for trial is restricted, with impeachment of a witness becoming extremely difficult. This is all at the cost of the defendant’s liberty.

    With these restrictions, Wisconsin’s current criminal discovery statute contemplates one of the largest information disparities between the state and the defendant. Investigating officers often only collect and document evidence that is helpful to the state, or evidence they deem relevant. Certainly, police officers and defense attorneys have differing opinions as to what is “relevant” in a case. Even more challenging is the reality that evidence is often lost or destroyed by the time a suspect is actually charged by the district attorney’s office, rendering most exculpatory evidence unobtainable.

    The increasing number of false convictions and exonerations also suggest the need for change. Since 1989, more than 1,400 individuals have been exonerated across the United States, with the number of non-DNA exonerations significantly outweighing the number of DNA exonerations.6 A report published by the National Registry of Exonerations showed that between 1989 and 2012, 21 people were exonerated in Wisconsin, with Wisconsin being number eight on the list of exonerations per capita.7 This notion is supported by statistics that show that of the eight states that allow criminal depositions (Iowa, Missouri, New Hampshire, Florida, North Dakota, Vermont, Texas, and Arizona),8 only one state, Florida, appears on the top 10 list of states with the most exonerations (Florida is ranked 7th on the list).9

    Finally, the defense bar argues that depositions promote resolution. Depositions provide prosecutors and defense attorneys with the chance to learn about a case’s strengths and weaknesses. If a deposition is conducted, “previously undetected or unobserved weaknesses in the prosecution’s proof may come to light,” resulting in the prosecutor having an incentive to resolve the case via plea negotiations.10 The same holds true for defendants. After a deposition, a defendant will have a better idea of what the testimony will be, resulting in an informed decision to accept a plea deal or go to trial. Furthermore, quick resolutions cut spending due to fewer resources being used and fewer cases being tried to a jury.

    The Middle Ground

    Chuck Morton, former Chief Assistant State Attorney in Broward County, Fla., and a guest speaker at the July 15 public hearing, stated that defendants are not entitled to a perfect trial, but a fair trial. He stressed to the committee that in considering depositions in criminal cases, we must conduct a cost-benefit analysis, enact rules to control the use of depositions to avoid abuse, and ultimately strive for equality and fairness. I agree.

    Through first-hand experience, and researching other criminal procedure statutes, I have put together a list of possible rules that will guide the discussion and attempt to achieve equality and fairness.

    1) Create Procedures Specifically Tailored to Benefit Criminal Process.The goals and overall process in criminal cases differ greatly from civil cases. However, Wisconsin’s limited criminal deposition statute provides that depositions, when permissible, must be conducted in accordance with the Rules of Civil Procedure.11 While this would create an immediate implementation of the deposition statute, this provision should be changed. To achieve equality and fairness, and in the interest of satisfying the advocates and opponents of criminal depositions, we must enact rules specifically tailored to criminal cases. For the rules to be effective, we must study the criminal procedure statutes in other states, research how appellate courts have interpreted and managed the issues that stem from those statutes, and ultimately determine which statutes have been the most efficient and effective. It is not until we fully understand the practical problems that arise in the implementation of the criminal process that an enactment of clear and effective rules in Wisconsin is possible.

    2) Limit Questioning to the Witnesses’ Personal Knowledge of the Facts and Potentially Impeaching Information. Wisconsin’s Rules of Civil Procedure allow any party to depose any witness about any topic if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.12 For purposes of locating a middle ground between deposition advocates and opponents, the breadth of questioning in a criminal deposition could be limited. For example, if a witness to a homicide is being deposed, the defense attorney could be prohibited from questioning the witness about his or her education or family background, or whether the deponent has ever been the victim of a crime. Limiting the questioning to the witness’s personal knowledge of the facts, and potentially impeaching information, would attempt to prevent harassment and overbroad questioning of witnesses, and also curb unnecessary costs. The rule would concurrently provide defendants an opportunity to gather facts and make informed plea decisions, or allow them to adequately prepare for trial.

    3) Limit Depositions to Class A-G Felonies. The penalties for Class A-G felonies range from imprisonment for up to 10 years to life. Limiting depositions to more serious felony cases will attempt to alleviate the prosecution’s time-constraint concerns, prevent rampant costs and delays, and also satisfy the defendant’s request for equality and a fair trial. Additionally, misdemeanor courts, which are often the busiest, will not be affected by the case delays associated with deposing witnesses. This solution helps to strike a balance between the taxpayers’ concern for fiscal efficiency and the defendant’s concern for protecting his or her liberty.

    4) Special Protections for Victims and Child Witnesses. Providing special protections for victims is vital in sexual assault cases. In this context, defense attorneys should be required to obtain a court order granting permission to question a sexual assault victim about his or her prior sexual conduct before such questioning can take place in a deposition. This rule would be consistent with Wisconsin’s Rape Shield Law, which generally prohibits defendants from introducing evidence of a complaining witness’s prior sexual conduct, subject to a few limited exceptions.13 Other protections such as videotaping the depositions of minors, coordinating depositions with victim advocates, and implementing rules for protective orders and sanctions can also assist in achieving equality and fairness.

    5) Prohibit Defendants from Being Present During the Deposition. This one is controversial. In considering the requirements of the Confrontation Clause (as discussed in endnote 4), the major benefit to permitting a defendant’s presence is that any deposition testimony would be subsequently admissible during trial if a witness became “unavailable” under Wis. Stat. sections 908.04 and 908.045.14 However, permitting the defendant’s presence is simply too risky to be advantageous. Victims and witnesses would be deposed with defendants sitting across from them. Undeniably, this would create a hostile environment and pose an enormous danger, especially if the defendant was out of custody and not chaperoned by a sheriff. This may even prevent a witness from providing truthful testimony out of intimidation or concern for safety. This would then create numerous issues at trial when seeking to impeach a witness. Also, in-custody defendants may be required to be transported to and from jails by sheriffs, and monitored during the deposition, resulting in additional costs for taxpayers. Thus, to limit costs, ensure safety, and promote truthful testimony, defendants should be prohibited from attending depositions.15

    6) Prohibit “Evidence-Creating” Strategies. Often, defense attorneys are provided with police reports that contain questionable facts or evidence. A defense attorney’s natural reaction is to challenge its credibility. A perfect example is when a witness identifies an individual in a photo array after the witness observed the suspect in the dark for two seconds. Certainly, a defense attorney will want to depose the identifying witness to question the witness about his or her ability to adequately observe the suspect. That is fair game. What should be prohibited, for example, is for the defense attorney to create his or her own photo array and present that to the witness for purposes of seeing if the witness will identify the same individual for a second time. This type of “evidence-creating” strategy is not what fact-gathering depositions are intended to achieve, and should be prohibited.

    7) Use of Digital Recording Devices. To cut costs, digital recording devices should be used to record depositions. For example, in Broward County, Fla., the Public Defender’s Office and the State Attorney’s Office initially agreed that depositions could be digitally recorded via a telephonic recording service in lieu of a court reporter. However, the agreement broke down when the recording company’s records custodian made access to the recordings difficult for the state attorneys, but not the public defenders. Additionally, in a trial setting, the digitally recorded depositions were often not transcribed. Impeachment was conducted in the presence of the jury by the witness listening to the audio recording with headphones, then being asked a question related to the testimony given at the digitally recorded deposition. That method was far from effective or efficient. This example illustrates the reason why specific rules outlining the use of digital recording devices must be enacted, and statutes from other states must be studied. A neutral third party must not only be the records custodian of the deposition recordings – similar to a court reporter in a civil case – but should also be the transcriber of the recordings, with equal access to the recordings being granted to both parties.

    8)Location of the Deposition. With district attorneys’ offices regularly being located in the courthouse, and with prosecutors being concerned about time constraints, criminal depositions should be conducted within a short radius of the courthouse, and even within the courthouse if possible. Out-of-county witnesses should be deposed in the county where they reside, unless otherwise stipulated by the parties and agreed to by the deponent.

    9) Time Limits. Limiting the questioning to an hour, with leave of the court being necessary for a longer deposition, will also aid the process. This restriction will limit the types of questions asked, resulting in less harassment, intimidation, and costs.

    Conclusion: As I See It

    While the cost-benefit analysis needs additional research and debate, when tailored appropriately, depositions in criminal cases can improve the bench, bar, and practice. And if equality and fairness are the goals of the criminal justice system, the topic is always ripe. As a former prosecutor in two states, Florida (which allows depositions) and Wisconsin (which prohibits them), and now as a practicing criminal defense attorney often strapped for information, I can firmly assert that the ability to depose witnesses in criminal cases is beneficial for both sides. It certainly promotes resolution, and as I see it, a prosecutor’s biggest nightmare is convicting an innocent person. The best way to prevent that is to provide equal access to the evidence. The time has come to bridge the information gap between prosecutors and defense attorneys, for in the words of Thomas Jefferson, “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.”


    1 Wis. Stat. § 971.23.

    2 Wis. Stat. section 967.04(7)(a) provides an exception for child witnesses who have been, or likely will be, called as a witness.

    3 Wis. Stat. § 804.01(2).

    4 InCrawford v. Washington, 541 U.S. 36 (2004), the court established that the Confrontation Clause mandates that criminal defendants have the opportunity to cross-examine their accuser face-to-face prior to the accuser’s out-of-court testimonial statements being admissible at trial. As deposition testimony is certainly testimonial in nature, in order for the deposition testimony to be admissible in a criminal trial, the defendant must have had the opportunity to face the accuser face-to-face during the deposition, and the accuser would have to be unavailable at trial. An exception would be to allow defendants to be present during depositions. That issue is briefly discussed later in this article.

    5 Wis. Stat. § 971.23.

    6 The National Registry of Exonerations.

    7 Exonerations in the United States, 1989-2012: Report by the National Registry of Exonerations, Table 9.

    8 Mary Prosser, Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities, 2006 Wis. L. Rev. 541, 607 (2006).

    9 Exonerations in the United States, 1989-2012: Report by the National Registry of Exonerations, Table 8.

    10 Prosser, supra note 8, at 611.

    11 Wis. Stat. § 967.04(3).

    12 Wis. Stat. § 804.01(2).

    13 Wis. Stat. § 972.11(2)(b).

    14 See also Crawford, 541 U.S. 36.

    15 This rule does not contemplate the ability for a prosecutor to depose a defendant, which certainly should be prohibited given a defendant’s Fifth Amendment right to remain silent.

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