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FED. R. CRIM. P. Rule 15 provides for the taking of depositions in criminal cases. However, unlike the counterpart under the civil rules, depositions in criminal cases are allowable only in very limited situations.

Depositions in criminal cases have no discovery function, Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962), cert. den., 371 US 955 (1963), and may be taken only by “order” of the trial court. FED. R. CRIM. P. Rule 15(a).

Furthermore, Rule 15 requires that the moving party establish the following prerequisites in order to obtain a court order for taking a deposition:

  • That the prospective witness may be unable to attend or be prevented from attending a trial or hearing,
  • That the testimony of the witness is material, and
  • That it is “necessary to take his deposition in order to prevent a failure of”

All of the above conditions must be satisfied or the motion to take a deposition will be denied. In re US, 348 F.2d 624 (1st Cir. 1965); US v. Steel, 359 F.2d 381 (2d Cir. 1966); In re Russo, 19 F.R.D. 278 (E.D.N.Y. 1956), _aff’d, 241 F.2d 285 (2d Cir. 1957), cert. den., 385 U.S. 816 (1957).

The requisite showing of “materiality” does not require that the defendant show that the expected testimony will “exonerate” him or that same will surely acquit him, but only that the anticipated testimony is “material” to some defense. US v. Hagedorn, 253 F. Supp. 969, 971 (S.D.N.Y. 1966).

The Organized Crime Control Act of 1970 [codified as 18 U.S.C. § 3503] provides for the taking of depositions in criminal cases and was regarded to have superseded the provisions of Rule 15.1, WRIGHT, FEDERAL PRACTICE AND PROCEDURE:  CRIMINAL § 251; however, FED. R. CRIM. P. Rule 15, incorporates the provisions of the Omnibus Crime Bill.

Much of the language of the Organized Crime Control Act pro-visions relating to depositions is taken without change from Rule 15. However, the statute provides for depositions to be taken by the government, and expressly restricts a party to the taking of a deposition of its own witness. 18 U.S.C. § 3503(a). While the requirements for taking a deposition seem to have been slightly liberalized from those of Rule 15, permitting the taking of a deposition “whenever due to exceptional circumstances it is in the interest of justice that the testimony of a prospective witness of a party be taken or preserved,” the Courts have interpreted this provision to mean that if the three specified conditions of FED. R. CRIM. P. Rule 15(a) are met, then the “exceptional circumstances” test of the statute is satisfied. US v. Singleton, 460 F.2d 1148 (2d Cir. 1972), cert. den., 410 US 984.

The statute further provides that the scope of examination and cross-examination at a deposition shall be the same as would be allowed at the trial itself [18 U.S.C. § 3503 (d)] and, interestingly, the Government is required to make available to the defendant any statements of a witness that the Government would be required to make available if the witness were testifying at the trial (pursuant to the Jencks Act) [18 U.S.C. § 3503(e)]. With respect to the use of a deposition at trial, the statute contains an additional definition of what is meant by the “unavailability” of a witness at trial, allowing the use of a deposition where “…the witness refuses in the trial or hearing to testify concerning the subject of the deposition or the part offered.” 18 U.S.C. § 3503(f).

Absent a showing that a prospective witness may die before trial or is otherwise unable to attend because of sickness or disability, US v. Hagedorn, 253 F. Supp. 969 (S.D.N.Y. 1966); US

  1. Foster, 81 F. Supp. 281, 284 (S.D.N.Y. 1948); orders for depositions are rarely granted in criminal cases. This only serves to re-emphasize the importance of a transcript of the preliminary hearing or other pre-trial motion hearings in “fixing” the Government’s story and preserving their witnesses’ sworn testimony for impeachment and other uses at trial. But see U.S. v. Sines, 761 F.2d 1434 (9th Cir. 1985) (holding prosecution witness was likely to be incarcerated in Thailand for many years by the time of trial, disposition would be allowed). See also U.S. v. Poindexter, 732 F. Supp 142 (D.D.C. 1990) (stating where witness intends to assert executive privilege, involving matters of national security , videotaped deposition is only way to balance executive’s interests against those of defendant).
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