In this section, our attorneys explain Nevada’s criminal laws and legal concepts, A to Z
Depositions are rarely admitted as evidence in Nevada criminal trials. But judges potentially permit them under the following five circumstances:
(Depositions can also be used to contradict or impeach the witness’s testimony at trial.)
In short, the ideal situation is for a party or a witness in a case to testify live during a court hearing or trial. But if circumstances make it difficult or impossible for that to happen, the judge can admit a deposition transcript into evidence as the next best thing. And deposition transcripts can also be used to cast doubt on a witness’s live trial testimony if his/her deposition contradicts it.
The deposing attorneys are required to give witnesses sufficient notice of the deposition. And defendants who are being deposed have the right to have an attorney with them during the process. If the defendant cannot afford an attorney, the court can appoint one.
If a deposition is prejudicial to the defendant, the defendant can always file a motion with the court asking the judge to suppress the deposition as evidence. The judge would then make a case-by-case determination of whether to table the deposition — in whole or in part — as evidence.
For “good cause”, judges will permit witnesses in a criminal case to provide their testimony through a videotaped deposition rather than in person. Three circumstances where judges may allow videotaped depositions include when:
Note that judges presume there is “good cause” to permit videotaped depositions of sex trafficking victims. (Videotaped depositions can also be used to impeach the witness’s credibility.)
Depositions are very formal proceedings. Once a judge decides to allow it, the judge will determine the time, place, and people allowed to be at the deposition. The deponent needs to be provided with reasonable notice. And if the prosecutor is requesting the deposition, the prosecutor needs to provide the defendant with sufficient information so they (or their defense attorneys) can prepare questions for cross-examination.
A justice of the peace or a district judge must preside over a videotaped deposition. During the deposition, the defendant must be able to see and hear everything (such as through a video monitor). The defendant must also be able to communicate with his/her attorney during the deposition.
NRS 174.171 Applicability. The provisions of NRS 174.171 to 174.225, inclusive, do not apply to a deposition taken pursuant to NRS 174.227 or used pursuant to NRS 174.228, or both.
NRS 174.175 When taken.
1. If it appears that a prospective witness is an older person or a vulnerable person or may be unable to attend or prevented from attending a trial or hearing, that the witness’s testimony is material and that it is necessary to take the witness’s deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment, information or complaint may, upon motion of a defendant or of the State and notice to the parties, order that the witness’s testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place. If the motion is for the deposition of an older person or a vulnerable person, the court may enter an order to take the deposition only upon good cause shown to the court. If the deposition is taken upon motion of the State, the court shall order that it be taken under such conditions as will afford to each defendant the opportunity to confront the witnesses against him or her.
2. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court, on written motion of the witness and upon notice to the parties, may direct that the witness’s deposition be taken. After the deposition has been subscribed, the court may discharge the witness.
3. This section does not apply to the prosecutor, or to an accomplice in the commission of the offense charged.
4. As used in this section:
(a) “Older person” means a person who is 70 years of age or older.
(b) “Vulnerable person” has the meaning ascribed to it in NRS 200.5092.
NRS 174.185 Notice of taking. The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time.
NRS 174.195 Defendant’s counsel and payment of expenses. If a defendant is without counsel the court shall advise the defendant of his or her right and assign counsel to represent the defendant unless the defendant elects to proceed without counsel or is able to obtain counsel. 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 How taken. A deposition shall be taken in the manner provided in civil actions. The court at the request of a defendant may direct that a deposition be taken on written interrogatories in the manner provided in civil actions.
NRS 174.215 Use of deposition.
1. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears:
(a) That the witness is dead;
(b) That the witness is out of the State of Nevada, unless it appears that the absence of the witness was procured by the party offering the deposition;
(c) That the witness cannot attend or testify because of sickness or infirmity;
(d) That the witness has become of unsound mind; or
(e) That the party offering the deposition could not procure the attendance of the witness by subpoena.
2. Any deposition may also be used by any party to contradict or impeach the testimony of the deponent as a witness.
3. If only a part of a deposition is offered in evidence by a party, an adverse party may require the party to offer all of it which is relevant to the part offered and any party may offer other parts.
NRS 174.225 Objections to admissibility. Objections to receiving in evidence a deposition or part thereof may be made as provided in civil actions.
NRS 174.227 Videotaped depositions: Order of court; notice to parties; cross-examination; use.
1. A court on its own motion or on the motion of the district attorney may, for good cause shown, order the taking of a videotaped deposition of:
(a) A victim of sexual abuse as that term is defined in NRS 432B.100;
(b) A prospective witness in any criminal prosecution if the witness is less than 14 years of age; or
(c) A victim of sex trafficking as that term is defined in subsection 2 of NRS 201.300. There is a rebuttable presumption that good cause exists where the district attorney seeks to take the deposition of a person alleged to be the victim of sex trafficking.
–> The court may specify the time and place for taking the deposition and the persons who may be present when it is taken.
2. The district attorney shall give every other party reasonable written notice of the time and place for taking the deposition. The notice must include the name of the person to be examined. On the motion of a party upon whom the notice is served, the court:
(a) For good cause shown may release the address of the person to be examined; and
(b) For cause shown may extend or shorten the time.
3. If at the time such a deposition is taken, the district attorney anticipates using the deposition at trial, the court shall so state in the order for the deposition and the accused must be given the opportunity to cross-examine the deponent in the same manner as permitted at trial.
4. Except as limited by NRS 174.228, the court may allow the videotaped deposition to be used at any proceeding in addition to or in lieu of the direct testimony of the deponent. It may also be used by any party to contradict or impeach the testimony of the deponent as a witness. If only a part of the deposition is offered in evidence by a party, an adverse party may require the party to offer all of it which is relevant to the part offered and any party may offer other parts.
NRS 174.228 Videotaped depositions: Use. A court may allow a videotaped deposition to be used instead of the deponent’s testimony at trial only if:
1. In the case of a victim of sexual abuse, as that term is defined in NRS 432B.100:
(a) Before the deposition is taken, a hearing is held by a justice of the peace or district judge who finds that:
(1) The use of the videotaped deposition in lieu of testimony at trial is necessary to protect the welfare of the victim; and
(2) The presence of the accused at trial would inflict trauma, more than minimal in degree, upon the victim; and
(b) At the time a party seeks to use the deposition, the court determines that the conditions set forth in subparagraphs (1) and (2) of paragraph (a) continue to exist. The court may hold a hearing before the use of the deposition to make its determination.
2. In the case of a victim of sex trafficking as that term is defined in subsection 2 of NRS 201.300:
(a) Before the deposition is taken, a hearing is held by a justice of the peace or district judge and the justice or judge finds that cause exists pursuant to paragraph (c) of subsection 1 of NRS 174.227; and
(b) Before allowing the videotaped deposition to be used at trial, the court finds that the victim is unavailable as a witness.
3. In all cases:
(a) A justice of the peace or district judge presides over the taking of the deposition;
(b) The accused is able to hear and see the proceedings;
(c) The accused is represented by counsel who, if physically separated from the accused, is able to communicate orally with the accused by electronic means;
(d) The accused is given an adequate opportunity to cross-examine the deponent subject to the protection of the deponent deemed necessary by the court; and
(e) The deponent testifies under oath.
NRS 174.229 Videotaped testimony. If a prospective witness who is scheduled to testify before a grand jury or at a preliminary hearing is less than 14 years of age, the court shall, upon the motion of the district attorney, and may, upon its own motion, order the child’s testimony to be videotaped at the time it is given.
NRS 174.231 Effect of NRS 174.227, 174.228 and 174.229. The provisions of NRS 174.227, 174.228 and 174.229 do not preclude:
1. The submission of videotaped depositions or testimony which are otherwise admissible as evidence in court.
2. A victim or prospective witness from testifying at a proceeding without the use of his or her videotaped deposition or testimony.
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.
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