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It is rare in my experience for depositions to come into evidence during Nevada criminal trials because judges prefer that witnesses give live testimony. Though if witnesses cannot appear in person, I have seen judges admit into evidence transcripts of their past depositions.
Specifically, there are six circumstances where a witness’s past deposition (“depo”) may come into evidence during your Nevada criminal trial:
The witness has since died;
The witness is no longer of sound mind;
The witness cannot attend the trial due to illness or injury;
The witness is not in Nevada, and neither you nor the D.A. caused the witness to leave just to get their depo admitted;
The witness cannot otherwise be compelled to testify in court; or
The witness gave testimony at trial that contradicts what they previously said in a deposition, and you or the D.A. wants to admit the deposition to impeach their credibility.1
Can I request depositions in anticipation of my criminal trial?
Yes. At your request, your Nevada criminal judge can order a witness to sit for a deposition if their testimony is material to your case, and they are either:
at least 70 years old,
physically or mentally disabled, or
unable to attend your trial.
Prosecutors can also ask the court to order depos for their witness(es) for the same reasons.
Note that when a witness is committed for failure to give bail to appear to testify at a trial, the judge can direct that the witness remains in custody until they submit to a deposition.2
What are depositions like?
Depositions are very similar to being on the witness stand during a Nevada criminal trial in that the witness:
is under oath,
is being examined and cross-examined, and
can be represented by their own attorney.
Depositions are very formal proceedings. Once a judge decides to allow it, they will determine the time, place, and people allowed to be at the deposition.
The deponent needs to be provided with reasonable notice. Plus if the prosecutor is requesting the deposition, the prosecutor needs to provide you with sufficient information so you (or I as your defense attorney) can prepare questions for cross-examination.
As the defendant, you have the right to be present (in most cases) and must be able to communicate with your attorney throughout the deposition. If you cannot afford an attorney, the court will appoint you a deputy public defender.3
What if I cannot afford to hold a deposition?
If the court permits you to hold a deposition but you cannot afford it, you can ask the court to pay for the expenses. These typically include court reporter fees and room rental fees.4
When can videotaped depositions take the place of live trial testimony?
For “good cause shown” in Nevada criminal cases, the judge may allow the following witnesses to provide their testimony through a videotapeddeposition rather than in the courtroom during trial:
Note that judges presume there is “good cause” to permit videotaped depositions of sex trafficking victims.
A justice of the peace or a district judge must preside over videotaped depositions. During the deposition, you as the defendant must be able to see and hear everything (such as through a video monitor). You also must be able to communicate with your attorney during the deposition.5
How can an attorney help me during witness depositions?
If a witness in your Nevada criminal case is giving a deposition, I as a criminal defense attorney would:
do extensive preparation to know which questions to ask the witness during the depo and which subjects to avoid altogether;
lock in all the important testimony during the depo in case the witness cannot testify during trial or gives contradictory statements during trial;
steer the witness interviews in a way to minimize the chances of them saying incriminating things about you; and
NRS 174.185. NRS 174.195 (“If it appears that a defendant at whose instance a deposition is to be taken cannot bear the expense thereof, the court may direct that the expenses of the court reporter and of travel and subsistence of the defendant’s attorney for attendance at the examination must be paid as provided in NRS 7.135.”). NRS 174.205 (“A deposition shall be taken in the manner provided in civil actions.”)
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.