Last Updated on October 13, 2021 by Fair Punishment Team

Depositions involve witnesses appearing at a predetermined time and place to give testimonies under oath.

They usually occur during the discovery phase of a lawsuit and their purposes are to learn what the witnesses know and to record their testimonies, and also to allow both parties to learn all of their facts before their trial to ensure the trial runs as smoothly as possible. 

Sometimes a deposition is not needed, but this will all depend on the unique facts and circumstances of the case.

For example, if a case mainly involves only legal issues and not factual issues, a deposition may not be required. This is because witness testimony and other evidence are not relevant to these disputes.

As we have already mentioned, a deposition has two main purposes. To find out what the witness, or the ‘deponent’, knows and so there is a record of their testimony. As part of the discovery process, the deposition may be used at a trial. 

As it is a pre-trial phase, a deposition usually does mean going to trial. But depositions can be what drives the opposing sides to come to a settlement, and therefore not have to go to trial. 

While it is a formal investigation ahead of the trial, a deposition is a rather simple procedure. The opposing counsel will ask the witness a set of questions relating to the case.

The deposition is about the witness telling the truth to the opposing counsel, rather than telling his or her side of the story.

The deposition is either recorded word-for-word by a court reporter for a transcript to be produced at a later date.

However, if a deponent is very ill and therefore not able to attend any pre-trial procedures, out of town, or otherwise unavailable it is video-taped. 

After the deposition, a written transcript is prepared by the court reporter. The copies are then sent to all parties, and the transcript is also reviewed for mistakes or inconsistencies.

A lawyer will then evaluate the depositions and give their clients an assessment. 

This transcript may be used in a potential trial, and deposition transcripts and other discovery material are generally not considered part of the public record.

However, this isn’t the case when they become filed with the court. When this happens, the deposition transcript may be accessible for a long time after the case is over.

Can a case be dismissed after the deposition?

The short answer is that it all depends. A lot of factors and strategies come into play when it comes to pursuing this course of action.

However, three of the most successful ways to dismiss a case in a criminal trial can be the exclusion of witnesses via deposition, the exclusion of evidence, and plea negotiations. 

As we have mentioned, defense attorneys use depositions or taped statements to gather background on the case. They are an invaluable tool for attorneys to get an idea of what State-witnesses are going to say at trial.

As these statements are all given under oath, witnesses run the risk of perjuring themselves at trial and being impeached if what they say at trial differs from what was said at a deposition. 

However, that’s not the only purpose depositions serve. If a defense attorney in a criminal case knows that a victim may not want to participate in the prosecution, or the witnesses live far away and may not want to return for a deposition, requesting one may be a good way to remove them as a potential witness. 

Many courts and jurisdictions have a rule on how many times a witness can be absent for a deposition after they’ve been subpoenaed to one before sanctions can be employed.

Usually, it’s about two but this varies between judges and counties. If they do not attend two depositions, judges will exclude them as a witness and this makes the State unable to call them as a witness.

What’s more, if they are an essential witness (like a key eye witness) then the State may not be able to proceed. A case cannot go ahead without a key witness and so the case will be dismissed.

Another successful method to have a case dismissed is the exclusion of evidence and suppression.

Whenever a defense attorney takes on a new case, they investigate if there was any wrongdoing by the police and if they acted illegally. 

If the defense attorney believes there may be some illegality around a search or seizure and/or traffic stop they may look to file a suppression. 

Again, depending on the county the defense attorney will conduct depositions or taped statements to get concrete, specific testimony from a witness.

If there are inconsistencies between other key witnesses, contradictions of what is in the PC, or violations of any applicable constitutional statutes, it becomes possible to file a suppression. 

Then, the judge will set a hearing for the suppression. The defense attorney and the prosecutor will present evidence at this hearing as to why they believe the suppression is warranted or not.

Only after hearing all the evidence will the judge decide if suppression is appropriate. If it is warranted, the judge will grant the request.

The Court may also order any evidence that was received as a result of the illegal act by the police. This is evidence that can’t be used in the prosecution, like statements.

This deals a massive blow to the prosecutor’s case and makes it impossible to proceed. Therefore, dismissing the case is the only option. 

Plea negotiations are also a simple way for charges to be dismissed. This usually involves a plea agreement that will call for a guilty plea to one count under one cause number.

If you plead guilty, the prosecutor will agree to dismiss the remaining counts. If a defendant has multiple cases pending at one time, their defense attorney may also be able to have whole cases dismissed as part of the plea as well. 

After someone is convicted at a trial, a judge may find that certain counts need to merge with larger counts or be dismissed or vacated as they are minor charges that are included in larger charges. For example, a misdemeanor battery is a lesser included charge of aggravated battery.