by Attorney Eric D. PuryearIowa law allows depositions to be taken in criminal cases. That is a powerful tool that can be of great benefit to a criminal defendant in Iowa. Rule 2.13 of the Iowa Rules of Criminal Procedure govern the deposition process. Rule 2.13 of the Iowa Rules of Criminal Procedure is shown below.
Rule 2.13 Depositions.
2.13(1) By defendant. A defendant in a criminal case may depose all witnesses listed by the state on the indictment or information or notice of additional witnesses in the same manner and with like effect and with the same limitations as in civil actions except as otherwise provided by statute and these rules. Depositions before indictment or trial information is filed may only be taken with leave of court.
When the state receives notice that a deposition will be taken of a witness listed on the indictment, information or notice of additional witnesses, the state may object that the witness (a) is a foundation witness or (b) has been adequately examined on preliminary hearing. The court shall immediately determine whether discovery of the witness is necessary in the interest of justice and shall allow or disallow the deposition.
2.13(2) Special circumstances.
a. Whenever the interests of justice and the special circumstances of a case make necessary the taking of the testimony of a prospective witness not included in rule 2.13(1) or 2.13(3), for use at trial, the court may upon motion of a party and notice to the other parties order that the testimony of the witness be taken by deposition and that any designated book, paper, document, record, recording, or other material, not privileged, be produced at the same time and place. For purposes of this subsection, special circumstances shall be deemed to exist and the court shall order that depositions be taken only upon a showing of necessity arising from either of the following:
(1) The information sought by way of deposition cannot adequately be obtained by a bill of particulars or voluntary statements.
(2) Other just cause necessitating the taking of the deposition.
b. The court may upon motion of a party and notice to the other parties order that the testimony of a victim or witness who is a child, as defined in Iowa Code section 702.5, be taken by deposition for use at trial. Only the judge, parties, counsel, persons necessary to record the deposition, and any person whose presence, in the opinion of the court, would contribute to the welfare and well-being of the child may be present in the room with the child during the child’s deposition.
The court may require a party be confined to an adjacent room or behind a screen or mirror that permits the party to see and hear the child during the child’s deposition, but does not allow the child to see or hear the party. However, if a party is so confined, the court shall take measures to ensure that the party and counsel can confer during the deposition and shall inform the child that the party can see and hear the child during deposition.
2.13(3) By state. At or before the time of the taking of a deposition by a defendant under rule 2.13(1) or 2.13(2), the defendant shall file a written list of the names and addresses of all witnesses expected to be called for the defense (except the defendant and surrebuttal witnesses), and the defendant shall have a continuing duty before and throughout trial promptly to disclose additional defense witnesses. Such witnesses shall be subject to being deposed by the state.
2.13(4) Failure to comply. If the defendant has taken depositions under rule 2.13(1) and does not disclose to the prosecuting attorney all of the defense witnesses (except the defendant and surrebuttal witnesses) at least nine days before trial, the court may order the defendant to permit the discovery of such witnesses, grant a continuance, or enter such other order as it deems just under the circumstances. It may, if it finds that no less severe remedy is adequate to protect the state from undue prejudice, order the exclusion of the testimony of any such witnesses.
2.13(5) Perpetuating testimony. A person expecting to be a party to a criminal prosecution may perpetuate testimony in the person’s favor in the same manner and with like effect as may be done in expectation of a civil action.
2.13(6) Time of taking. Depositions shall be taken within 30 days after arraignment unless the period for taking is extended by the court for good cause shown. [66GA, ch 1245(2), §1301; 67GA, ch 153, §38; amendment 1980; amendment 1981; amendment 1982; 1985 Iowa Acts, ch 174, §14; Report November 9, 2001, effective February 15, 2002]
Generally speaking, only the witnesses disclosed by the State in the Trial Information can be deposed by the Defendant. However, there are exceptions to this rule, and the Iowa district court can allow a deposition of a witness who is not listed in the Trial Information when doing so is necessary to achieve justice. Rule 2.13(6) provides that depositions are to be taken within 30 days after arraignment, although that time can be and is often extended with good cause.
Depositions involve the Defendant, their attorney, the prosecutor, a court reporter, and witnesses (one at a time) meeting in a location to conduct the depositions. It is common that the location used is a conference room in the County Attorney’s office, although each county has its own customary practices as to deposition location. During the depositions, the witness is placed under oath and their testimony is treated the same as though they were sitting in court. The defense attorney can ask questions of the witness, and the prosecutor may elect to do so as well. The court reporter types what is said by all parties, and a transcript is produced which can be used for a variety of purposes in the case.
Depositions are such a powerful tool because they enable the defendant in an Iowa case to know what exactly the witness would state at trial. Sometimes, a witness will try and change their story between the time of deposition and trial, at which point the deposition transcript can be used to impeach the witness (which means to show that the witness is lying). Other times, depositions will help the prosecution to see that their case is not nearly as strong as they believed it to be, resulting in a more favorable resolution to the case without having to proceed to trial. Indeed, I can think of many cases that have been dismissed by the prosecution after we took depositions.
However, depositions can be a double-edged sword. The prosecution may learn things during depositions that make a case less favorable for the defendant. It is also possible that a witness who would have been favorable at trial makes statements at their depositions that are less favorable, causing harm to the defendant’s case.
Like any tool, depositions have their pros and cons. The decision as to whether to take depositions, who to depose, etc., are best reached by a defendant and their attorney working together.