An essential element of any civil or criminal court action is the evidence offered by the parties. Evidence is what each side in a dispute must present to either a judge or a jury to prove what are, up to that point, probably nothing more than unproven allegations.
Much of the evidence presented at a trial is in the form of testimony from witnesses who are brought in by one of the parties. There is a risk to putting a witness on the stand to testify during a trial without knowing in advance what the person is going to say. Depositions help reduce this risk by giving the attorneys for the litigants the opportunity to question the witness well before the trial begins.
The deposition process
Depositions usually take place as part of the discovery phase of civil or criminal litigation. Discovery is the process by which the parties exchange evidence and information with each other about the case.
Depositions usually are held away from the courthouse in the office of an attorney for the one of the parties. A stenographer is present to take down what is said during the deposition and produce a written transcript of it. Some jurisdictions allow for the video recording of a deposition as long as the attorneys involved in the case agree to it.
A deposition by any other name
Depending upon where you live, asking the question, “What is a deposition?” might result in an answer that could be a little confusing. Most attorneys will know what you mean, but you might hear them referring to a deposition as an examination before trial. As a general rule, examinations before trial refer to the taking of testimony from one or more of the parties in a lawsuit. When the witness is not one of the parties, it is usually referred to as a deposition.
The purpose of depositions
Besides giving the attorney conducting the questioning of a witness the opportunity to hear what the individual will say if called as a witness at trial, depositions also preserve and memorialize the testimony of a witness.
The transcript of the deposition of a witness may be introduced into evidence at the trial under the following circumstances:
- Impeachment of the witness: A witness whose trial testimony conflicts with the testimony given at a deposition may be confronted with the deposition transcript to prove that the witness is lying.
- Death or absence of a witness: If a witness dies or disappears before a trial, it might be possible to offer into evidence the transcript from the deposition of the witness. The admissibility of the transcript depends upon local laws and requires permission from the trial judge.
- Refresh the recollection of a witness: A trial judge can allow a witness who might have forgotten something by the time the case goes to trial to use the deposition transcript to refresh his or her recollection of the events.
Experienced attorneys know the important role depositions can play in a court case. Statements made under oath during a deposition can be the deciding factor in winning or losing a lawsuit.