Depositions to Preserve Testimony

Rule 26 makes live testimony in open court the default and permits a departure only where a statute or a rule adopted under the rulemaking sections provides one.¹ Rule 15 is the principal departure that the Rules of Criminal Procedure themselves supply, and because it is such a rule it fits within Rule 26's exception clause.² Under Rule 15, a party may move that a prospective witness be deposed, meaning questioned under oath outside the courtroom with the answers recorded, in order to preserve the testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice.³ A witness whose serious illness threatens to keep the witness from reaching trial illustrates the problem the rule addresses, since physical disability is a recognized reason a witness cannot testify and a recorded deposition may then be received in place of live testimony.⁴

Each feature of the rule answers a difficulty created by moving testimony out of the courtroom. The open-court default exists so that the accused can test a witness face to face while the jury watches, so a substitute that removes the jury and the courtroom needs a strong justification, and the requirement of exceptional circumstances is the screen that demands one. The screen also removes an incentive. A party whose witness would wobble under live cross-examination would prefer a polished transcript, and if depositions were available on request, that preference would turn an exception into a routine. The safeguards then replace what the courtroom would otherwise have provided: notice lets the other side prepare, the defendant's right to attend keeps the accused in the witness's presence, and examination and cross-examination of the same scope as at trial keep the testing real.⁵

Rule 15 is also the place where the two themes of this chapter meet. The right to be present, taught above through Rule 43, and the right to confront witnesses, taught through Crawford v. Washington and its successors, both have to operate in a room that is not the courtroom. The Confrontation Clause matters here because a deposition belongs to the very class of material the Court treats as testimonial. In Davis v. Washington the Court restated Crawford's core formulations, which include extrajudicial statements contained in "formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions."⁶ Crawford itself bars the admission of a testimonial statement by a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination.⁷

Applied to a deposition, those two requirements divide between the deposition room and the trial. The deposition supplies the second requirement and only the second: the defendant's attendance and the cross-examination built into Rule 15 are what make an earlier opportunity to examine the witness meaningful, and when a deposition is used against the accused, a meaningful opportunity to confront and cross-examine, with the assistance of counsel, must be provided when it is taken.⁸ The first requirement, unavailability, is a showing the government must make later, when it offers the transcript. A witness's absence from the courtroom does not establish it by itself.⁹ The prosecution must also show that it could not procure attendance through good-faith efforts, as in Barber v. Page, where the Clause required a state prosecutor to take appropriate steps to induce federal authorities to produce a witness held in a federal penitentiary.¹⁰ That division explains why an order authorizing a deposition cannot settle admissibility. The order is entered before trial, when no one knows whether the witness will later be unavailable, so Rule 15 leaves the use of the transcript to the rules of evidence, and the Clause applies of its own force.¹¹

Who offers the deposition decides whether the Clause is involved at all. When the deposition is taken and used by the accused, no constitutional problem arises, because the guarantee protects the accused against the witnesses against him, whereas a deposition used against the accused must meet the unavailability standards and the cross-examination requirement.¹²

Hypothetical Illustration

The defense obtains an order to depose a defense witness who is about to move abroad for an extended stay, and at trial the defendant offers the transcript. The Clause guards the accused against witnesses against him, and this is the defendant's own witness, so the confrontation right is not engaged, although the rules of evidence still govern the use of the transcript.¹³ Reverse the offering party: the government deposes its own witness with the defendant present and defense counsel cross-examining, and at trial the government offers the transcript even though the witness is in town and could be subpoenaed. The deposition is a formalized testimonial statement, the witness did not appear at trial, and unavailability has not been shown, so the Clause bars the transcript despite the earlier cross-examination.¹⁴

Students most often lose this issue by treating the order authorizing the deposition as if it settled whether the transcript may be used. The order answers only whether testimony may be preserved, and use at trial remains a separate question governed by the rules of evidence and the Clause.¹⁵ The opposite error is to read Crawford as shutting out every deposition. Both conditions can be met, since a deposition taken with the defendant present and subject to cross-examination supplies the prior opportunity, and a showing of unavailability at trial supplies the rest.¹⁶

The four subsections that follow take a deposition through its life in order: the order and the notice that goes with it, the defendant's right to attend, the narrow route for a witness outside the United States, and finally how the deposition is taken and used.

Ordering and Noticing Depositions

A deposition begins with a motion. Under Rule 15(a)(1), a party may move that a prospective witness be deposed to preserve testimony for trial, and the court may grant the motion because of exceptional circumstances and in the interest of justice.¹⁸ Two features of that sentence do the work. The word may leaves the decision to the court, so the motion asks for an order and does not by itself produce one. The grant also depends on two findings made together, exceptional circumstances and the interest of justice, which means the party who wants the testimony preserved must carry a burden before the courtroom is bypassed. When the court does order the deposition, it may also require the deponent to produce at the deposition any designated material that is not privileged, including any book, paper, document, record, recording, or data.¹⁹

The high threshold follows from what a deposition displaces. Because live testimony in open court is the default, every deposition replaces an examination the jury would have watched with one the jury will only read or hear played back, and that loss needs a justification that the ordinary difficulties of litigation do not supply. A scheduling conflict can usually be solved by adjusting the schedule, and a busy witness can usually be brought to court, so neither shows that the testimony itself is at risk. The circumstances that qualify are the ones that threaten the testimony, such as a witness who is about to leave the country for good and cannot be made to return.

One person other than a party can also start the process. A witness who is detained under 18 U.S.C. § 3144, the material-witness provision, may request to be deposed by filing a written motion and giving notice to the parties.²² The court may then order the deposition and may discharge the witness after the witness has signed the deposition transcript under oath.²³ The reason for this route comes from the witness's position: a detained witness is held only because the testimony matters, so the witness has a strong reason to want the testimony taken and the detention ended. Once the sworn testimony is on the record and signed, the case no longer depends on keeping the witness in custody.

After an order is in view, the other side must be told. A party seeking to take a deposition must give every other party reasonable written notice of its date and location, and the notice must state the name and address of each deponent.²⁴ If a party receiving the notice asks, the court may, for good cause, change the deposition's date or location.²⁵ Each element supports the cross-examination that makes a deposition usable later. Counsel cannot prepare to question a witness whose identity, whereabouts, or examination time are unknown, and an opportunity to cross-examine that counsel cannot use exists in name only. The good-cause power to move the date or location acts as a release valve, because if the first schedule would leave the other side unable to attend or prepare, the court can adjust it instead of letting the deposition go forward on terms that defeat its own purpose.

A second notice runs to a different recipient. The party taking the deposition must also notify the officer who has custody of the defendant of the scheduled date and location.²⁶ A defendant in custody cannot reach a deposition unaided, so the officer must know when and where to bring the defendant, and the right to attend that this makes possible is the subject of the next subsection.

The rule also allows a shortcut. The parties may by agreement take and use a deposition with the court's consent.²⁷ The text requires both the agreement and the consent, so the parties cannot move testimony out of the courtroom between themselves. The court stays in the position of gatekeeper, which matches the principle that departures from open-court testimony come from the rules and not from private arrangement.

Students most often lose this issue by treating a deposition as available once notice has gone out. Notice is the second step and not the first, because the party must first obtain an order, and the order depends on a showing of exceptional circumstances in the interest of justice, so an inconvenient schedule will not carry the motion.²⁸ Giving the other parties reasonable written notice of the date, location, and each deponent's name and address then makes the deposition fair to the opposing side, but notice cannot supply the showing that the motion itself requires.²⁹

Defendant's Presence at Depositions

A deposition lets the accused confront the witness only if the accused is actually in the room, so Rule 15(c) makes attendance the default and sorts defendants into two groups by whether they are in custody. The groups differ in who has to act. For a defendant in custody, the officer holding the defendant must deliver the defendant to the deposition; for a defendant who is free, the defendant must ask to attend.³¹ Both paths yield to the narrow exception in Rule 15(c)(3), which the next subsection takes up.³²

The design makes sense once you ask what an absent defendant would lose. A deposition replaces live testimony that the jury would otherwise have watched, and the defendant's attendance is what keeps the accused in the witness's presence while the witness is examined. If the right to attend could vanish through an official's inaction or through the cost of travel, the deposition would fail to protect confrontation at the very point where it is already a substitute for the courtroom. The rule therefore ties each loss of the right to something the defendant does: signing a waiver, persisting in disruption after a warning, or staying away after the government has removed the financial obstacle.

For a defendant in custody, Rule 15(c)(1) places the burden on the custodian. The officer who has custody must produce the defendant at the deposition and keep the defendant in the witness's presence during the examination.³³ The duty falls on the officer because a person in jail cannot travel to a deposition unaided, which is also why the party taking the deposition must tell the custodian when and where it will occur. Two events release the officer from the duty, and each comes from the defendant. The first is a waiver in writing of the right to be present.³⁴ The second is persistence in disruptive conduct that justifies exclusion after the court has warned that such conduct will result in exclusion.³⁵ The writing requirement leaves a record that staying away was the defendant's own decision, which matters because someone held in custody who never reaches the room has no other way to show the absence was chosen. The warning requirement makes exclusion follow from a defendant's decision to continue after being told the consequence, and not from a single outburst. The same sequence of warning, then persistence, governs removal from the courtroom under Rule 43, covered earlier in this chapter.

A free defendant stands in a different position. Rule 15(c)(2) gives a defendant who is not in custody the right, upon request, to be present at the deposition, subject to any conditions the court imposes.³⁶ Two features follow from the defendant's freedom. The right is triggered by a request because no officer is responsible for delivering a defendant on release, and the government cannot know whether that defendant wishes to attend. The court's power to set conditions lets it arrange how attendance occurs, so the right operates within whatever arrangements the court makes for the proceeding.

The hinge of the free-defendant path is what happens when the defendant then fails to appear. If the government tenders the defendant's expenses as provided in Rule 15(d) and the defendant still fails to appear, the defendant, absent good cause, waives both the right to appear and any objection to the taking and use of the deposition based on that right.³⁷ The tender comes first because a waiver is meaningful only if the defendant could actually have attended, and the government's payment removes cost as the reason for staying away. The second half of the waiver supplies an incentive check. Without it, a defendant who expected a damaging deposition could skip it and later attack its use on the ground that the defendant was not there. The good-cause exception protects the defendant whose absence comes from something beyond the defendant's own choice. This waiver by non-appearance appears only in the not-in-custody provision, so a defendant in custody loses the right only by written waiver or by disruption after a warning.³⁸

Rule 15(d) supplies the expenses whose tender sets that waiver in motion. When the government requested the deposition, the court may order the government to pay, and if the defendant is unable to bear the deposition expenses, the court must.³⁹ The payment covers any reasonable travel and subsistence expenses of the defendant and the defendant's attorney to attend, and it covers the costs of the deposition transcript.⁴⁰ The attorney's expenses are included because attendance without counsel would not allow cross-examination to be effective, and the transcript is included so that a defendant who cannot pay still receives the record of what the witness said. By its terms the provision applies when the government made the request, so it does not on its own force the government to fund a deposition the defense sought.

Hypothetical Illustration

A defendant on pretrial release asks to attend the government's deposition of a witness. The government tenders the defendant's reasonable travel expenses, but the defendant does not show up and has no good cause. Under Rule 15(c)(2) the defendant has waived the right to appear and any objection to the taking and use of the deposition based on that right.⁴¹ Change one fact: the defendant cannot afford the trip and the government has tendered nothing. The waiver provision is triggered by a tender, so the failure to appear waives nothing, and because the government requested the deposition and the defendant cannot bear the cost, the court must order the government to pay.⁴² Change a different fact: the government tenders the expenses, but the defendant is hospitalized the night before and cannot travel. The reason for the absence is good cause, so there is no waiver.⁴³

A defendant in custody who tells a guard that he would rather skip the deposition has not made the waiver the rule describes, because the text calls for a waiver in writing.⁴⁴ The opposite error is to carry the tender-and-no-show waiver into the custody provision, where it does not appear. Whether a transcript may later be used against the defendant is a separate question, since waiving an objection based on the right to be present does not by itself show that the witness is unavailable at trial.

Depositions Outside the United States

Rule 15(c) treats the defendant's attendance at a deposition as the default, and the provisions covered in the preceding subsection let that attendance be lost only through something the defendant does: a written waiver, persistent disruption after a warning, or a failure to appear after the government tenders expenses. Rule 15(c)(3) supplies the one route that depends on circumstances instead. The deposition of a witness who is outside the United States may be taken without the defendant's presence if the court makes case-specific findings of all the conditions the rule lists.⁴⁷ Case-specific means the findings must rest on the facts about this witness, this defendant, and this prosecution, so a general belief that foreign depositions are hard to arrange does not satisfy the rule. The route is narrow because the cost is high. A deposition already replaces testimony the jury would have watched, and taking it without the defendant also removes the accused from the witness's presence, so the rule demands a showing that the testimony matters, that the ordinary alternatives have failed, and that some real measure of participation survives.

The five findings divide by the question each answers, and three of them concern the witness. The first is that the witness's testimony could provide substantial proof of a material fact in a felony prosecution.⁴⁸ Two limits sit inside that wording. The prosecution must be for a felony, so the route is closed in a misdemeanor case, and the testimony must be capable of supplying substantial proof of a material fact, so a peripheral or cumulative witness does not justify giving up the defendant's presence. The verb could asks what the testimony is capable of proving, which is the only thing a court can assess before the deposition has been taken.

The second and third findings both ask whether the witness can be obtained in the United States, but they ask about different events. The court must find a substantial likelihood that the witness's attendance at trial cannot be obtained.⁴⁹ That finding shows why a deposition is needed at all, since a witness who will appear at trial can testify in open court under the ordinary rule. The court must also find that the witness's presence for a deposition in the United States cannot be obtained.⁵⁰ That finding shows why the deposition has to take place abroad. The two are separate because a witness may refuse to attend a trial that could last weeks yet agree to travel here for a short deposition. If the witness would make that trip, the defendant could attend on American soil under the ordinary provisions, and the witness's foreign residence no longer justifies excluding the defendant.

The fourth finding turns from the witness to the defendant. The court must find that the defendant cannot be present, and the rule names three reasons that track the defendant's situation.⁵¹ The first is that the country where the witness is located will not permit the defendant to attend, an obstacle no American court can remove. The second applies to a defendant in custody: secure transportation and continuing custody cannot be assured at the witness's location, so the defendant could neither be taken there nor kept in custody once there. The third applies to a defendant who is not in custody: no reasonable conditions will assure an appearance at the deposition or at trial or sentencing. That last reason looks past the deposition itself, because a released defendant who travels abroad may not come back, and the court must find that no set of conditions would guard against that outcome before it excludes the defendant. The three reasons are alternatives, so one suffices, but the court must find at least one on the facts before it. The expense or inconvenience of the trip is not among them.

The fifth finding keeps the exception from becoming a bare exclusion. The court must find that the defendant can meaningfully participate in the deposition through reasonable means.⁵² The rule does not list the means, so the court judges what is reasonable on the facts, and a connection that lets the defendant follow the examination and consult counsel while it proceeds is the kind of arrangement the finding contemplates. The reason follows from what attendance accomplishes. Presence keeps the accused in the witness's presence during the examination, and when physical attendance is impossible the rule insists on whatever participation can be arranged, so that the confrontation value is preserved as far as the circumstances allow.

The findings are conjunctive: the rule requires findings of all of them, and a record that supports four but not the fifth does not authorize the deposition without the defendant.⁵³ Each finding closes a different gap. The first three show that the testimony is worth preserving and cannot be obtained in the United States, the fourth shows that the defendant's absence is unavoidable and not a product of the government's choices, and the fifth shows that the absence does not strip the proceeding of every form of participation. If any one is missing, a gap remains open, the exception is unavailable, and the defendant keeps the right to attend. These findings address only the defendant's absence. The party must still obtain an order for the deposition itself on the showing of exceptional circumstances and the interest of justice discussed earlier in this chapter.⁵⁴ Whether a transcript may later be used at trial remains a separate confrontation question, governed by the principles covered earlier in this chapter.

Hypothetical Illustration

A defendant is charged with a felony, and the government's only witness to a key transaction lives in a foreign country. The court finds that the witness's testimony could provide substantial proof of a material fact, that the witness will not come to trial or to a deposition in the United States, that the foreign country will not allow the defendant to attend, and that the defendant can take part through a live video link with a private channel to counsel. Every required finding has been made, so the deposition may proceed without the defendant.⁵⁵ Change one fact: the arrangements available in that country leave the defendant no reasonable way to follow the examination or confer with counsel. The court cannot find that the defendant can meaningfully participate, so Rule 15(c)(3) does not authorize the deposition without the defendant, however strong the other four findings are.⁵⁶ Change a different fact: the witness is willing to travel to the United States for a one-day deposition. The court cannot find that the witness's presence for a deposition here cannot be obtained, so the exception fails at that point instead.⁵⁷

Students most often lose this issue by treating a witness's location abroad as enough to proceed without the defendant. The foreign location is only the threshold that brings Rule 15(c)(3) into play, and everything else must still be found: the importance of the testimony in a felony case, the unavailability of the witness at trial and for a deposition here, a stated reason the defendant cannot attend, and a workable means of participation.⁵⁸ The hypothetical shows which fact carries each answer. The same witness and the same foreign country produce three different results depending on whether participation can be arranged and whether the witness will travel here.

Key Exam Rule

Foreign deposition without the defendant

The deposition of a witness outside the United States may be taken without the defendant's presence only if the court makes case-specific findings of all of the following: (1) the testimony could provide substantial proof of a material fact in a felony prosecution; (2) there is a substantial likelihood that the witness's attendance at trial cannot be obtained; (3) the witness's presence for a deposition in the United States cannot be obtained; (4) the defendant cannot be present because the foreign country will not permit attendance, because secure transportation and continuing custody cannot be assured for an in-custody defendant, or because no reasonable conditions will assure an out-of-custody defendant's appearance at the deposition or at trial or sentencing; and (5) the defendant can meaningfully participate through reasonable means.⁵⁹

Taking and Using Depositions

Earlier subsections settled whether a deposition may be ordered and who may attend it. Rule 15(e) governs what happens once the witness is seated and the questions begin. Its starting point is borrowing: unless the criminal rules or a court order provide otherwise, a deposition must be taken and filed in the same manner as a deposition in a civil action.⁶⁰ Borrowing makes sense because civil practice already has settled mechanics for conducting an examination and creating a filed record, so the criminal rule needs to speak only where a prosecution calls for something different. It names three such departures, and each protects the same thing. The deposition has to work as a fair stand-in for testimony the jury would otherwise have heard at trial.

The three departures are these:

A defendant may not be deposed without that defendant's consent.⁶¹
The scope and manner of the examination and cross-examination must be the same as would be allowed during trial.⁶²
The government must provide the defendant or the defendant's attorney, for use at the deposition, any statement of the deponent in its possession to which the defendant would be entitled at trial.⁶³

The consent requirement addresses the one person in the case who is also the person on trial. A deposition is a formal question-and-answer examination that produces a record usable later, and at trial the defendant decides whether to take the stand at all. If the government could notice the defendant's deposition the way it can notice a witness's, that decision would be made for the defendant before trial, and a transcript would exist whether or not the defendant ever meant to testify. Requiring consent leaves the decision with the defendant. Other prospective witnesses stand in a different position, since the court may order them deposed to preserve testimony once the showing for a Rule 15 order is made.⁶⁴

The second departure keeps the examination itself at trial strength. Because the transcript may later stand in for live testimony, the questioning that produces it has to be tested the way live testimony would be. Rule 15(e)(2) therefore measures the scope and manner of both examination and cross-examination against what would be allowed during trial.⁶⁵ The same limits apply and the same latitude is available, so the defense cross-examiner is not confined to a narrower inquiry because the setting is a conference room instead of a courtroom. That latitude matters most to the defense. Cross-examination is how the defendant tests a witness whose testimony will be used against the defendant, and a shortened cross would leave a record the defendant could not fairly challenge.

The third departure arms that cross-examination. At trial, defense counsel questions a government witness with the witness's earlier statements in hand, and cross-examination without them is blunted. Rule 15(e)(3) carries that advantage into the deposition by requiring the government to give the defendant or the defendant's attorney, for use at the deposition, any statement of the deponent in the government's possession to which the defendant would be entitled at trial.⁶⁶ Two features of the wording repay attention. The phrase for use at the deposition fixes the timing, so the statement must be in counsel's hands when the questioning occurs and not delivered afterward. The phrase to which the defendant would be entitled at trial sets the scope, so the rule moves a trial-stage entitlement forward to the point where cross-examination happens, without creating a broader right to the government's file.

Hypothetical Illustration

A court orders the deposition of a government witness. Before questioning begins, the government hands defense counsel the witness's earlier statement that the defendant would be entitled to at trial, and defense counsel cross-examines within the scope trial would allow. The deposition has been taken as Rule 15(e) requires, although whether the transcript may later be used is a separate matter.⁶⁷ Change one fact: the government holds that statement but gives it to counsel only after the deposition ends. The duty runs to counsel for use at the deposition, so delivery after the examination comes too late to satisfy it.⁶⁸ Change a different fact: the government asks to question the defendant along with the other witnesses, and the defendant declines. Without the defendant's consent, the defendant cannot be deposed.⁶⁹

A deposition taken in compliance with these provisions is not thereby usable at trial. Rule 15(f) provides that an order authorizing a deposition does not determine its admissibility, and that a party may use all or part of a deposition as provided by the Federal Rules of Evidence.⁷⁰ The two questions are kept apart because they are asked at different times on different information. The court decides whether to order a deposition before the witness has said anything, on a showing that the testimony needs preserving. Whether the transcript can be used turns on what was actually said, on the objections raised, and on the condition of the case at trial, and none of that exists when the order is entered. Separating the questions also means a decision to preserve testimony cannot decide, by momentum, whether the evidence rules and the Constitution allow the testimony to be used. The tempting error is to treat an order authorizing the deposition as a ruling that the transcript will come in.

When the government offers the transcript against the accused, the Confrontation Clause adds its own conditions to those in the evidence rules. A deposition is formal testimony given in the presence of counsel for use at trial, so it falls within the core testimonial class discussed earlier in this chapter, and the two requirements of the testimonial rule apply. The witness must be unavailable at trial, and the defendant must have had a meaningful opportunity to cross-examine when the deposition was taken, which carries the right to counsel at that time.⁷¹ The second requirement is why the provisions on the defendant's presence, the attorney's expenses, and the same-as-trial scope of cross-examination matter: they are what make the opportunity real. The first requirement is a separate showing made when the transcript is offered. Absence from the hearing does not by itself establish unavailability, and the proponent must also show an inability to procure attendance by process or by other reasonable means.⁷² For the Clause, the standard is diligence through good-faith efforts. In Barber v. Page, a prosecutor who wanted to use the preliminary hearing testimony of a witness held in a federal penitentiary in an adjoining state was required to take appropriate steps to induce the federal authorities to produce the witness at trial.⁷³

Hypothetical Illustration

A government witness is deposed under a Rule 15 order, and defense counsel cross-examines in full. At trial the government offers the transcript against the defendant. The witness is beyond the court's subpoena power, and the government has neither asked the witness to attend nor offered to cover travel and subsistence expenses. The cross-examination satisfied the opportunity requirement, but absence alone does not make the witness unavailable and the diligence standard is unmet, so the transcript cannot be used against the defendant on this record.⁷⁴ Change one fact: the witness has since become too ill to travel or testify. A physical disability can supply unavailability if it is serious enough to meet the standard the Clause applies, and the transcript may then be used, subject to the evidence rules.⁷⁵ The valid order is the same in both versions, and the outcomes differ because of what happened afterward.

One more rule governs the room while the deposition runs. Rule 15(g) requires a party objecting to deposition testimony or evidence to state the grounds for the objection during the deposition.⁷⁶ The timing serves two ends. A question that is defective in form can be rephrased while the witness is still present, which turns a problem on the record into a cured one. A rule that let a party stay silent and raise the point for the first time at trial would reward that silence, because by then the witness may be unreachable and no one could repair the question. A party who wants to contest a question or an answer must therefore speak at that moment, with the grounds stated.