22-3211.Depositions.(1) If it appears that a prospective witness may be unable to attend orprevented from attending a trial or hearing, that the witness' testimony ismaterial and that it is necessary to take the witness' deposition in order toprevent a failure of justice, the court at any time after the filing ofa complaint or indictment may upon motion of a defendant and noticeto the parties order that the witness' testimony be taken by deposition and thatany designated books, papers, documents or tangible objects, notprivileged, be produced at the same time and place.
(2) If a witness is committed for failure to give bond to appear totestify at a trial or hearing, the court on written motion of thewitness and upon notice to the parties may order that the witness'deposition betaken. After the deposition has been subscribed the court may dischargethe witness.
(3) The prosecuting attorney may apply to the court for an orderauthorizing the prosecuting attorney to take the deposition of any witnessfor any of thereasons and subject to the limitations stated in subsection (1). Uponthe filing of such application, the court shall set the matter forhearing and shall order the defendant to be present atsuch hearing. If, upon hearing, the court determines that a prospectivewitness may be unable to attend or prevented from attending a trial orhearing, that the witness' testimony is material and that it is necessary toprevent a failure of justice, the court may authorize the prosecutingattorney to take the deposition of the witness.
(4) If the crime charged is a felony, the prosecuting attorney may applyto the court for an order authorizing the prosecuting attorney to take thedeposition of any essential witness. Upon the filing of such application,the court shall set the matter for hearing and shall order the defendantto be present at such hearing. If, upon hearing, the court determines thatthe witness is an essential witness, the court shall authorize the prosecutingattorney to take the deposition of the witness in the county where thecomplaint or indictment has been filed. Upon application, the court may order thata deposition taken pursuant to this subsection be videotaped.
(5) The party at whose instance a deposition is to be taken shall giveto every other party reasonable written notice of the time andplace for taking the deposition. The notice shall state the name andaddress of each person to be examined. On motion of a party upon whomthe notice is served, the court for cause shown may extend or shortenthe time.
(6) A deposition shall be taken in the manner provided in civilactions. The court, upon request of the defendant, may direct that adeposition be taken on written interrogatories in the manner provided incivil actions.
(7) Whenever the court authorizes the taking of a deposition, other thana deposition upon written interrogatories, thecourt shall make a concurrent order requiring that the defendant bepresent when the deposition is taken. If it appears that the presence ofthe defendant may be coercive to the witness whose deposition is to betaken, the court shall order that the deposition be taken before ajudge.
(8) 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 usedif it appears that:
(a) The witness is dead;
(b) the witness is out of the state andthe witness'appearance cannot be obtained, unless it appears that the absence of thewitness was procured by the party offering the deposition;
(c) the witness is unable to attend or testify because ofsickness or infirmity; or
(d) the party offering the deposition has been unable toprocure the attendance of the witness by subpoena or other process.
Any deposition may also be used by any party for the purpose ofcontradicting or impeaching the testimony of the deponent as a witness.If only a part of a deposition is offered in evidence by a party, anadverse party may require the offering party to offer all of it which is relevant tothe part offered, and any party may offer other parts.
(9) Objections to receiving in evidence a deposition or part thereof maybe made as provided in civil actions.
(10) As used in this section, "essential witness" means a prospectivewitness in the prosecution of a felony who is an eyewitness to the felonyor without whose testimony a conviction could not be obtained because thetestimony would establish an element of the felony that cannot be provenin any other manner.
History: L. 1970, ch. 129, § 22-3211; L. 1982, ch. 147, § 1;L. 1987, ch. 115, § 1; July 1.
22-3211.Depositions.(1) If it appears that a prospective witness may be unable to attend orprevented from attending a trial or hearing, that the witness' testimony ismaterial and that it is necessary to take the witness' deposition in order toprevent a failure of justice, the court at any time after the filing ofa complaint or indictment may upon motion of a defendant and noticeto the parties order that the witness' testimony be taken by deposition and thatany designated books, papers, documents or tangible objects, notprivileged, be produced at the same time and place.
(2) If a witness is committed for failure to give bond to appear totestify at a trial or hearing, the court on written motion of thewitness and upon notice to the parties may order that the witness'deposition betaken. After the deposition has been subscribed the court may dischargethe witness.
(3) The prosecuting attorney may apply to the court for an orderauthorizing the prosecuting attorney to take the deposition of any witnessfor any of thereasons and subject to the limitations stated in subsection (1). Uponthe filing of such application, the court shall set the matter forhearing and shall order the defendant to be present atsuch hearing. If, upon hearing, the court determines that a prospectivewitness may be unable to attend or prevented from attending a trial orhearing, that the witness' testimony is material and that it is necessary toprevent a failure of justice, the court may authorize the prosecutingattorney to take the deposition of the witness.
(4) If the crime charged is a felony, the prosecuting attorney may applyto the court for an order authorizing the prosecuting attorney to take thedeposition of any essential witness. Upon the filing of such application,the court shall set the matter for hearing and shall order the defendantto be present at such hearing. If, upon hearing, the court determines thatthe witness is an essential witness, the court shall authorize the prosecutingattorney to take the deposition of the witness in the county where thecomplaint or indictment has been filed. Upon application, the court may order thata deposition taken pursuant to this subsection be videotaped.
(5) The party at whose instance a deposition is to be taken shall giveto every other party reasonable written notice of the time andplace for taking the deposition. The notice shall state the name andaddress of each person to be examined. On motion of a party upon whomthe notice is served, the court for cause shown may extend or shortenthe time.
(6) A deposition shall be taken in the manner provided in civilactions. The court, upon request of the defendant, may direct that adeposition be taken on written interrogatories in the manner provided incivil actions.
(7) Whenever the court authorizes the taking of a deposition, other thana deposition upon written interrogatories, thecourt shall make a concurrent order requiring that the defendant bepresent when the deposition is taken. If it appears that the presence ofthe defendant may be coercive to the witness whose deposition is to betaken, the court shall order that the deposition be taken before ajudge.
(8) 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 usedif it appears that:
(a) The witness is dead;
(b) the witness is out of the state andthe witness'appearance cannot be obtained, unless it appears that the absence of thewitness was procured by the party offering the deposition;
(c) the witness is unable to attend or testify because ofsickness or infirmity; or
(d) the party offering the deposition has been unable toprocure the attendance of the witness by subpoena or other process.
Any deposition may also be used by any party for the purpose ofcontradicting or impeaching the testimony of the deponent as a witness.If only a part of a deposition is offered in evidence by a party, anadverse party may require the offering party to offer all of it which is relevant tothe part offered, and any party may offer other parts.
(9) Objections to receiving in evidence a deposition or part thereof maybe made as provided in civil actions.
(10) As used in this section, "essential witness" means a prospectivewitness in the prosecution of a felony who is an eyewitness to the felonyor without whose testimony a conviction could not be obtained because thetestimony would establish an element of the felony that cannot be provenin any other manner.
History: L. 1970, ch. 129, § 22-3211; L. 1982, ch. 147, § 1;L. 1987, ch. 115, § 1; July 1.
22-3211.Depositions.(1) If it appears that a prospective witness may be unable to attend orprevented from attending a trial or hearing, that the witness' testimony ismaterial and that it is necessary to take the witness' deposition in order toprevent a failure of justice, the court at any time after the filing ofa complaint or indictment may upon motion of a defendant and noticeto the parties order that the witness' testimony be taken by deposition and thatany designated books, papers, documents or tangible objects, notprivileged, be produced at the same time and place.
(2) If a witness is committed for failure to give bond to appear totestify at a trial or hearing, the court on written motion of thewitness and upon notice to the parties may order that the witness'deposition betaken. After the deposition has been subscribed the court may dischargethe witness.
(3) The prosecuting attorney may apply to the court for an orderauthorizing the prosecuting attorney to take the deposition of any witnessfor any of thereasons and subject to the limitations stated in subsection (1). Uponthe filing of such application, the court shall set the matter forhearing and shall order the defendant to be present atsuch hearing. If, upon hearing, the court determines that a prospectivewitness may be unable to attend or prevented from attending a trial orhearing, that the witness' testimony is material and that it is necessary toprevent a failure of justice, the court may authorize the prosecutingattorney to take the deposition of the witness.
(4) If the crime charged is a felony, the prosecuting attorney may applyto the court for an order authorizing the prosecuting attorney to take thedeposition of any essential witness. Upon the filing of such application,the court shall set the matter for hearing and shall order the defendantto be present at such hearing. If, upon hearing, the court determines thatthe witness is an essential witness, the court shall authorize the prosecutingattorney to take the deposition of the witness in the county where thecomplaint or indictment has been filed. Upon application, the court may order thata deposition taken pursuant to this subsection be videotaped.
(5) The party at whose instance a deposition is to be taken shall giveto every other party reasonable written notice of the time andplace for taking the deposition. The notice shall state the name andaddress of each person to be examined. On motion of a party upon whomthe notice is served, the court for cause shown may extend or shortenthe time.
(6) A deposition shall be taken in the manner provided in civilactions. The court, upon request of the defendant, may direct that adeposition be taken on written interrogatories in the manner provided incivil actions.
(7) Whenever the court authorizes the taking of a deposition, other thana deposition upon written interrogatories, thecourt shall make a concurrent order requiring that the defendant bepresent when the deposition is taken. If it appears that the presence ofthe defendant may be coercive to the witness whose deposition is to betaken, the court shall order that the deposition be taken before ajudge.
(8) 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 usedif it appears that:
(a) The witness is dead;
(b) the witness is out of the state andthe witness'appearance cannot be obtained, unless it appears that the absence of thewitness was procured by the party offering the deposition;
(c) the witness is unable to attend or testify because ofsickness or infirmity; or
(d) the party offering the deposition has been unable toprocure the attendance of the witness by subpoena or other process.
Any deposition may also be used by any party for the purpose ofcontradicting or impeaching the testimony of the deponent as a witness.If only a part of a deposition is offered in evidence by a party, anadverse party may require the offering party to offer all of it which is relevant tothe part offered, and any party may offer other parts.
(9) Objections to receiving in evidence a deposition or part thereof maybe made as provided in civil actions.
(10) As used in this section, "essential witness" means a prospectivewitness in the prosecution of a felony who is an eyewitness to the felonyor without whose testimony a conviction could not be obtained because thetestimony would establish an element of the felony that cannot be provenin any other manner.
History: L. 1970, ch. 129, § 22-3211; L. 1982, ch. 147, § 1;L. 1987, ch. 115, § 1; July 1.
