by H. Morley Swingle¹

Historically, a criminal defendant in the United States was not entitled to take depositions of prospective witnesses.² Even today, discovery depositions are not allowed in the vast majority of states,³ nor in federal prosecutions.⁴ Nor does either party have a federal constitutional right to take them.⁵ Missouri has chosen, however, to allow liberal use of depositions in criminal cases. The Missouri Constitution has long provided prosecutors with the authority to take depositions to preserve testimony,⁶ as do applicable statutes⁷ and Supreme Court Rules.⁸ The defense right to take discovery depositions is authorized by both statute⁹ and rule.¹⁰ The prosecution's ability to take discovery depositions was created by statute in 1995.¹¹ New Supreme Court Rules, effective July 1, 2004, reflect changes and developments in substantive law¹² and are must-reading for lawyers practicing criminal law in Missouri.

II. Depositions to Preserve Testimony

The oldest forms of depositions in criminal cases are those conducted by the prosecutor to preserve testimony. Specifically authorized by the Missouri Constitution,¹³ by statute,¹⁴ and by Supreme Court rule,¹⁵ they have existed for many decades. The new version of the rule sets out the procedures involved. The prosecutor must obtain prior court approval for the deposition¹⁶ after serving notice at least five days¹⁷ in advance. In a true emergency, the five-day notice requirement may be shortened.¹⁸ The court must make a finding, after a hearing, that the deposition is necessary to preserve testimony,¹⁹ and should order the defendant to attend or require the defendant to personally waive in open court "the right to be present and the right of confrontation."²⁰ Although the statute limits these depositions to felony cases and to "essential witnesses,"²¹ the rule does not impose those same limitations. Discovery must be provided to the defense prior to the deposition in sufficient time for the defense attorney to adequately prepare for it.²² The reasonable travel expenses of the defendant and counsel are to be taxed as court costs.²³ The state may never take a deposition to preserve the testimony of the defendant or the defendant's spouse.²⁴

III. Discovery Depositions

Depositions by the prosecution to preserve testimony have always been rare. Much more common are discovery depositions, at first available only to the defense, but now a tool for prosecutors as well.

A. When Taken

Discovery depositions cannot be taken until after the discovery process begins, which is triggered by the filing of the information.²⁵ Thus, discovery depositions in felony cases cannot be taken before the preliminary hearing.

B. Notice

The party taking a deposition must give written notice to the opposing side at least seven days in advance.²⁶ It is good practice and a matter of common courtesy to contact the opposing lawyer to try to set up a mutually convenient time. It is also a good idea to send a written notice even if the time and place are verbally agreed upon. The court reporter should issue subpoenas to guarantee the presence of the witnesses.

C. Location

A deposition should generally be taken in the county where the witness resides.²⁷ This new requirement is aimed at limiting inconvenience to witnesses. Prosecutors often arrange for a deposition of an out-of-county witness to be taken at a local prosecutor's office, police department, courthouse or private law office. The prosecution is not required to produce an out-of-state witness for a discovery deposition in Missouri.²⁸ If push comes to shove, a dispute over the location of a deposition is resolved by the court. The deposition of any person in prison is to be taken where the prisoner is confined, unless otherwise ordered.²⁹

D. Presence of Defendant

The new revisions to Rules 25.12 and 25.15 specify that the defendant should not be present at a discovery deposition except by agreement of the parties or upon court order for good cause shown. This revision is based upon the rules in Florida and Vermont.³⁰ In cases involving violence, stalking or sex crimes, the defendant's presence can constitute further victimization of the victim by forcing her to be in the same room with someone she still fears.³¹ A photographer who stalked Jackie Onassis, for instance, was not allowed to attend her deposition.³²

A defense attorney faces a two-edged sword in deciding whether the client should attend a deposition. On the one hand, the client's presence can be helpful because he or she can often suggest good questions. On the other hand, the defense attorney may prefer not to have the client present to prevent the prosecutor from using the deposition in lieu of live testimony should the witness later become unavailable.³³ If the prosecutor refuses to agree to the presence of the defendant, the defense can seek an order from the trial judge allowing it. In determining whether to issue the order, the trial judge should consider the need for the presence of the defendant, the effect his or her presence may have upon the witness, plus "[a]ny available use of screening or alternative methods of taping or recording that would allow the defendant limited observation of the witness and the [opportunity] to confer with counsel."³⁴

E. Presence of Others

It is hornbook law that a court may order depositions to be conducted with no one present except persons designated by the court.³⁵ Some courts use the analysis that the "rule on witnesses"³⁶ applies at depositions in exactly the same way it applies at trial, and that a party may exclude other persons merely by "invoking the rule." Others take the position that the party wanting the exclusion must seek and obtain a protective order from the trial court after a showing of good cause.³⁷ Missouri specifically holds that the "rule on witnesss[es]" applies to the taking of depositions.³⁸ One court emphasized Wigmore's declaration that, next to cross-examination, the sequestration of witnesses is "one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice."³⁹

1. Victim

Missouri law does not specifically address whether the victim may attend depositions of other witnesses in the case. To date, it has been virtually unheard of for a victim to attend a deposition. While the Missouri Constitution and victims' rights legislation give a victim the right to attend any proceeding the defendant has the right to attend,⁴⁰ this should not apply to a deposition, since Rules 25.12 and 25.15 do not give the defendant an automatic right to attend a deposition.

2. Victim Advocate

In cases involving children or other fearful or vulnerable witnesses, the victims may want the local crime victim advocate present at the depositions. Especially for violent crimes, "the presence of a sympathetic person to support the witness [can] produce more complete information than if the witness were questioned alone in a hostile, frightening environment."⁴¹ Some states specifically allow this by case law,⁴² statute,⁴³ or rule.⁴⁴ It has not come up in Missouri, but since it is common practice for a victim advocate to sit near a victim during courtroom testimony, it seems likely the same thing would be permitted at a deposition.

3. Family Member of Child Victim

A family member of a child victim can be a real source of comfort to a child during a deposition. Some states have specifically approved the presence of a family member at a child's deposition.⁴⁵ Although Missouri has not addressed the issue yet, it has approved having the mother of a 6-year-old sodomy victim sit near the child during his courtroom testimony.⁴⁶ Again, if both sides cannot agree upon the matter, it should be resolved by the trial court prior to the deposition.

4. Spouse of the Defendant

The spouse of the defendant is generally not permitted to attend a deposition. Rule 56.01(c)(5) provides "that discovery be conducted with no one present except persons designated by the court." The applicability of the "rule on witnesses" to depositions⁴⁷ would usually serve to prevent the defendant's spouse from being a spectator at the event.

5. Opposing Expert Witnesses

In spite of the general rule that third persons may not attend depositions, some courts have held that one expert can kibbitz the deposition of another expert.⁴⁸ The benefits to the attorney conducting the questioning are obvious.

6. Police Officer or Investigator

Similarly, in a complicated case, it could be very helpful to the prosecutor for the lead investigator to sit in on the depositions. Absent agreement of the parties, this would generally be impermissible, since the lead investigator would usually be subject to the "rule on witnesses."

7. Media

Missouri appellate courts have not considered whether the press may attend a deposition in a criminal case or subsequently obtain a copy of the deposition, but these issues have arisen in states combining high-profile cases with aggressive reporters.⁴⁹ So far, most follow the principle set down by the United States Supreme Court that pre-trial depositions "are not public components" of a trial.⁵⁰ Accordingly, reporters are not permitted to attend depositions.⁵¹ Nor does a constitutional or common law right exist for the media to inspect or copy depositions.⁵² Whether the press may obtain a copy of a deposition after it was taken can depend upon whether it has been filed with the court. Some jurisdictions hold that, absent a protective order, a deposition placed in the court file has become a public record.⁵³ In Missouri, depositions are not generally permitted to be filed with the court,⁵⁴ but rather remain in possession of the attorneys taking them. They are not public record,⁵⁵ and rightly so. The discovery process is designed to uncover the truth, an achievement hard enough to accomplish under the best of circumstances. This quest often involves asking intrusive questions about embarrassing or sensitive matters, and a witness is much more likely to be completely candid without a television camera or newspaper reporter perched across the room. As the Florida Supreme Court noted, "Transforming the discovery rules into a major vehicle for obtaining information to be published by the press even though the information might be inadmissible, irrelevant, defamatory or prejudicial would subvert the purpose of discovery and result in the tail wagging the dog."⁵⁶ When a criminal prosecution has concluded, however, the Missouri Sunshine Law may operate to make the prosecutor's copies of the depositions part of the "investigative report" open to the public.⁵⁷

8. Attorney For Witness

In a criminal case, the prosecutor represents society as a whole, not a particular victim or witness.⁵⁸ Occasionally, a victim or witness will want his or her attorney present at the deposition. A deponent's right to legal advice during "a deposition is elementary as a matter of essential fairness."⁵⁹ An attorney may be present to help the witness invoke testimonial privileges, but is not allowed to make objections on matters of relevance or other issues not relating to privilege or self-incrimination, nor does the lawyer have the right to stop the taking of the deposition.⁶⁰

F. Scope of Deposition

The attorney conducting a deposition is allowed to ask any question "reasonably calculated to lead to the discovery of admissible evidence."⁶¹ The scope is thus quite broad. Good lawyers will use depositions to sharpen the issues, expose untenable arguments and efficiently marshal the facts of the case.⁶² They "freeze" the testimony of the witness at a comparatively early point in time to deter the witness from later changing the testimony as the trial date approaches.⁶³ They "observe and appraise the demeanor of adversary witnesses."⁶⁴ Some commentators believe that the coaching of witnesses is less common before depositions than before trials, thus making deposition testimony less rehearsed than trial testimony.⁶⁵

The opposing party or the witness may object and refuse to answer a question when it calls for privileged information or facts not "reasonably calculated to lead to the discovery of admissible evidence," or when the question is being asked in bad faith or in such a manner as to unreasonably annoy, embarrass or oppress the deponent.⁶⁶

Although an exhaustive list of impermissible questions is beyond the scope of this article, certain areas are marked with red flags. The same testimonial privileges applying at trial also protect witnesses at depositions, including the attorney-client privilege, the doctor-patient privilege, the priest-penitent privilege, and the licensed psychologist privilege.⁶⁷ The rape shield statute, which generally prohibits questions about a rape victim's previous sex life or general reputation for promiscuity, protects the victim at a deposition.⁶⁸ Police personnel files are generally off-limits from a "fishing expedition," absent a plausible showing that the information is both material and favorable.⁶⁹ In some instances, the court may elect to review the records in camera before deciding whether the parties should see them.⁷⁰ The identity of a confidential informant can usually remain a secret when disclosure is not essential to a fair determination of the cause.⁷¹ Likewise, the location of a confidential surveillance position can often remain a prosecution secret.⁷² Whether a witness is HIV positive is usually irrelevant and protected from inquiry.⁷³ The juvenile record of a witness is generally protected from discovery,⁷⁴ except to the extent that it pertains to the existence of a possible bias or prejudice of the witness, such as where the witness has a motive to lie because he is subject to the control of the juvenile authorities.⁷⁵ The mental health history of a witness, while often irrelevant, can become relevant when it affects the ability of the witness to perceive or remember events. In this clash between the witness's privilege against disclosure and the defendant's right to a fair trial, "[t]he generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial."⁷⁶ Psychological records of a witness are another area where the trial court may decide to perform an in camera inspection of the records before deciding whether to allow the parties access to them.⁷⁷ Whether a witness "ever" used a controlled substance is normally irrelevant and not calculated to lead to the discovery of admissible evidence unless used so recently that it affected the ability of the witness to perceive at the time of the events in question.⁷⁸

G. Protecting Witnesses From Harassment

Vermont's deposition rules include this language: "Attorneys shall avoid discourteous, disrespectful, argumenta-tive, repetitive, and irrelevant questioning and shall not harass or intimidate a deponent."⁷⁹ The Supreme Court of Missouri apparently has more faith in the professionalism of the members of its bar. It did not include a similar admonition in its rule. Safeguards do exist, however, for dealing with an attorney who is abusing the discovery process.

1. Objections & Certifying the Question

When a clearly improper question is asked (such as a matter covered by privilege), the other side can object and suggest that the witness not answer the question without court order. If the party seeking the answer wants to pursue it, the question can be certified to the court.⁸⁰ The court reporter makes a record of the question asked, the objection made, and the refusal of the witness to answer. The party seeking the disclosure can then file a motion with the trial court asking that the witness be ordered to answer the question. A party asking an improper question will often give up and not bother to certify it. As a practical matter, however, requiring a question to be certified can be time-consuming and expensive, since it can result in repetitive depositions. The party losing the dispute may be forced to reimburse the other side for expenses involved in litigating the issue.⁸¹ A prosecution witness who invokes a testimonial privilege at a deposition might later be barred from testifying at trial if the court finds that the defendant's right "to meaningful discovery was un-necessarily frustrated."⁸² For example, a DEA agent who refused to submit to the taking of a deposition in a state prosecution was later barred from testifying in the case.⁸³ The court should at least consider lesser sanctions, however.⁸⁴

2. Protective Orders

Either party or the witness "from whom discovery is sought" may seek a protective order to prevent "annoyance, embarrass-ment, oppression, or undue burden or expense."⁸⁵ This protection can take various forms, including prohibiting inquiry into certain matters, limiting the scope of inquiry, limiting the persons present, forbidding the deposition entirely, ordering the deposition sealed, or otherwise dictating the exact terms and conditions of the deposition.⁸⁶ A protective order may also guard the privacy of a witness or party by prohibiting dissemination of the deposition.⁸⁷

When the trial court won't protect a witness from discovery abuse, a writ of prohibition from an appellate court can do so. Prohibition was used to block a Missouri lawyer from forcing an expert witness from North Carolina to come to the lawyer's Missouri office for a deposition.⁸⁸ A writ was used to block a prosecutor from forcing the defense attorney in a criminal case to submit to a deposition.⁸⁹ A trial court order compelling a witness to view a photo array prepared by the defense lawyer at a deposition was overturned, since the purpose of a deposition is to inform the defense about the state's evidence, not to "create" evidence in the form of "misidenti-fications."⁹⁰

H. Expert Witnesses

Expert testimony is often present in criminal cases, from the chemist who analyzed a controlled substance to the seriologist who matched DNA to the psychiatrist who claims to have discerned a mental disease. The complexity and persuasive power of expert testimony requires diligent preparation to adequately challenge it, and depositions can play a key role in that preparation.⁹¹ The deposition of the expert is perhaps the most important one the criminal practitioner will take, since it provides opportunities not only to flush out the expert's conclusory written report, but also to educate the questioner about that particular field of expertise and to probe for weaknesses in the expert's training or knowledge. Both the prosecution and the defense are allowed to depose the opposition's experts. The new rules pertaining to deposing an expert in a criminal case mirror similar rules in the civil context. "Unless manifest injustice would result, . . . the party seeking discovery from an expert" is required to pay "a reasonable hourly fee for the time the expert is deposed."⁹² When an expert, such as a psychologist who provided counseling to a child molestation victim, is deposed only as a fact witness, however, and not as an expert witness, no expert witness fee is required.⁹³ Questions regarding the income the expert derives from testifying as an expert are fair game, and an expert who earns a significant portion of his or her living by testifying may be required by subpoena to divulge tax returns showing income derived from being a witness or consultant.⁹⁴ One side's expert witness will usually be allowed to sit in on a deposition of the counterpart on the other side.⁹⁵

IV. Use at Trial

Either side may use a deposition to impeach a witness when the witness testifies.⁹⁶ Different rules exist, however, as to the use the prosecution and the defense can make of a deposition in lieu of live testimony, because of the impact of the defendants Sixth Amendment right to confrontation of witnesses.⁹⁷ The new changes to Rule 25.16 guarantee that any trial court following the rule will automatically comport with constitutional requirements.

In order for the prosecution to admit a deposition at trial in place of the live witness, the state must meet a two-part showing: (1) the defendant must have been "personally present at the deposition"⁹⁸ and must have "had the right of confrontation and cross-examination,"⁹⁹ or must have waived those rights in open court¹⁰⁰ or have "[f]ailed to attend the deposition after" being ordered to do so;¹⁰¹ and (2) the witness must be unavailable¹⁰² in that (a) the witness is dead; or (b) "unable to attend or testify because of sickness or infirmity," or (c) the witness "invoked a testimonial privilege or other refusal . . . not produced by the action of the state;" or (d) the witness is "otherwise unavailable and the state has made a good faith effort to obtain the presence of the witness at the hearing or trial, but has been unable to procure the attendance of the witness."¹⁰³ What constitutes sufficient due diligence depends upon the facts of each case.¹⁰⁴ Requesting a subpoena and proving that officers tried to serve it both at the witness's home and at his former wife's home satisfied the test.¹⁰⁵ Two telephone calls over a space of six weeks with a last-minute request for a subpoena on the eve of trial did not.¹⁰⁶

The defense, on the other hand, may use a deposition not only in all instances when the state can use it, but also whenever "the witness is out of the state, unless it appears that the absence of the witness was procured by [the] defendant," when the witness is in prison, or when the witness is a judge, attorney, or physician "engaged in the discharge of [an] official or professional duty at the time of trial."¹⁰⁷

V. Jury Instructions

Jury instructions do not generally refer to depositions. In a situation where the preliminary hearing testimony of a deceased witness was read into evidence at trial, however, the court prepared a Not-in-MAI instruction to give the jury prior to the reading of the testimony.¹⁰⁸ It told the jury that the witness had died and that the law permitted them to consider his testimony from a prior proceeding "as if it were live today."¹⁰⁹ Deposition testimony could be handled the same way.

VI. Deposition of Child Victim Under § 491.675

In 1995, the Missouri legislature created a procedure for the deposition of a child victim in cases involving offenses against the person, sex crimes or offenses against the family.¹¹⁰ Judge Elwood Thomas warned that calling this specialized procedure a deposition is misleading, because it is less like a deposition than an alternate way of taking trial testimony.¹¹¹

The statute applies to children under the age of 17 and features the court presiding over the videotaped testimony of the child. The court can exclude the defendant from attending the deposition to prevent "significant emotional or psychological trauma to the child."¹¹² If the defendant is excluded, he or she must be given a chance to review the videotaped deposition and consult with the defense attorney about cross-examination questions before the child is excused. For the deposition to be admissible, the court must find that the child would experience "significant emotional or psychological trauma" from testifying at trial.¹¹³ Expert testimony will often be required to support this finding.¹¹⁴ The defendant does not have the right to take a discovery deposition of the child before this testimonial deposition.¹¹⁵

VII. The Future Of Depositions In Criminal Cases

The argument whether depositions are worth the expense in criminal cases is not new.¹¹⁶ The American Bar Association recommended against them in 1970, concluding that the expense outweighed the benefits, in that lawyers in most criminal cases already possess written statements from witnesses and that additional interrogation was of only marginal value, whereas the system provided no inherent limitation on the costs of discovery depositions, which costs were often borne by taxpayers.¹¹⁷ Depositions are also seen as an unnecessary burden on prosecution witnesses, who already face significant loss of time from reporting the crime to the police, from testifying at a preliminary hearing, and from testifying at trial.¹¹⁸ Yet even those who consider most depositions a waste of time must admit that they often help defense lawyers uncover impeachment material and sometimes simplify and regularize the process of discovery.¹¹⁹ No less a legal light than Justice William J. Brennan opined that defense lawyers need the power to take discovery depositions to offset the trial advantage enjoyed by prosecutors, and that "the gain to the public interest in the pure and just administration of the criminal law is well worth the risks."¹²⁰

Depositions are expensive. The State of Florida conducted a study and discovered, to its horror, that they consumed more than 750,000 law enforcement man-hours per year (enough to fully staff a police department the size of the one in Orlando, Florida) and cost more than $35.6 million annually in state and local funds.¹²¹ The Missouri State Public Defender System spent $490,874 on them in fiscal year 2002.¹²² The Cape Girardeau County Prosecuting Attorney's Office spent an average of $4,575 per year just on its copies of deposition transcripts from 1999 to 2001.¹²³

The Florida study caused its flabbergasted legislature to curtail the availability of depositions in criminal cases, eliminating them in misdemeanor cases, and restricting them to certain categories of witnesses in felony cases.¹²⁴ A bill that would have done away with depositions in criminal cases in Missouri made it out of committee but failed to pass the General Assembly in 2003. Depositions may have become so entrenched in the state's criminal justice system that they will endure, no matter what they cost. On the other hand, if economic times stay tough, the balancing of costs against benefits may eventually tip toward pulling the plug on criminal depositions in Missouri.

VIII. Conclusion

For better or worse, Missouri has the most wide-open laws in the country regarding depositions in criminal cases, whole-heartedly adopting the approach of Justice Brennan that criminal prosecutions should be sincere quests for the truth rather than sporting events featuring surprise answers as highlights of the event. Depositions are a powerful tool for both sides in criminal cases and should not be overlooked when resources are available for taking them.

Footnotes

¹ Mr. Swingle is the prosecuting attorney of Cape Girardeau County and a member of the Supreme Court of Missouri Committee on Criminal Procedure. He is a 1980 graduate of the University of Missouri-Columbia School of Law.

² Romualdo P. Eclavea, Annotation, Accused's Right to Depose Prospective Witnesses Before Trial in State Court, 2 A.L.R. 4th 704 (1980).

³ Yale Kamiser, Wayne R. LaFave & Jerold H. Israel, Modern Criminal Procedure: Cases, Comments and Questions 1235 (West 1994); John F. Yetter, Discovery Depositions in Florida Criminal Proceedings: Should They Survive?, 16 Fla. St. U. L. Rev. 675, 675 (1988). Kamiser reports that "only about ten states" allow discovery depositions, and even those vary significantly as to the extent they permit them.

⁴ See Fed. R. Crim. P. 15. A deposition may be taken in federal criminal cases only upon issuance of a court order based upon "exceptional circumstances."

⁵ Eclavea, note 2 at 715; McDole v. State, 6 S.W.3d 74, 79 (Ark. 1999); State v. Ellsworth, 709 A.2d 768, 771-72 (N. H. 1998).

⁶ Missouri Const., art. I, § 18(b).

⁷ Section 492.303, RSMo 2000.

⁸ Rule 25.14.

⁹ Section 545.400, RSMo 2000; Ex parte Welborn, 141 S.W. 31, 33 (Mo. 1911).

¹⁰ Rule 25.12.

¹¹ Section 545.415, RSMo 2000; State ex rel. Kinsky v. Pratte, 994 S.W.2d 74 (Mo. App. E.D. 1999).

¹² Rules 25.12 to 25.18.

¹³ Missouri Const., art. I, § 18(b).

¹⁴ Section 492.303, RSMo 2000.

¹⁵ Rule 25.14.

¹⁶ Section 492.303, RSMo 2000; Rule 25.14.

¹⁷ Section 492.303.1, RSMo 2000.

¹⁸ State v. Bryan, 60 S.W.3d 713 (Mo. App. S.D. 2001).

¹⁹ Section 492.303, RSMo 2000; Rule 25.14.

²⁰ Section 492.303.3, RSMo 2000; Rule 25.14.

²¹ Section 492.303, RSMo 2000.

²² Section 492.303.2, RSMo 2000.

²³ Section 492.303.2, RSMo 2000; Rule 25.14.

²⁴ Section 492.303.1, RSMo 2000; Rule 25.14.

²⁵ State ex rel. George v. Jones, 929 S.W.2d 256 (Mo. App. S.D. 1996).

²⁶ Rules 25.12(a), 25.15(a) and 57.03(b).

²⁷ Rules 25.12(b) and 25.15(b).

²⁸ State v. Kiser, 610 A.2d 135 (Vt. 1992).

²⁹ Rules 25.12(b) and 25.15(b).

³⁰ Vt. R. Crim. P. 15(b) (2000); Fla. R. Crim. P. 3.220(h)(7) (2001).

³¹ Kamisar, note 3 at 1235.

³² Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973).

³³ State v. Hankins, 642 S.W.2d 606 (Mo. 1982).

³⁴ Rules 25.12(c) and 25.15(c). The factors to consider are based on Vermont's rule. See Vt. R. Crim. P. 15(b) (2000).

³⁵ 23 Am.Jur.2d Depositions and Discovery § 103 (2002).

³⁶ State v. Griffin, 978 S.W.2d 445 (Mo. App. S.D. 1998).

³⁷ See generally Huber Baking Co. v. Frank C. Sparks Co., 76 A.2d 124 (1950); Central Hide & Rendering Co. v. B-M-K Corp., 19 F.R.D. 296 (D. Del. 1956); In re Shell Oil Refinery v. Shell Oil Co., 136 F.R.D. 615 (E.D. La. 1991); Lumpkin v. Bi-Lo, Inc., 117 F.R.D. 451 (M. D. Ga. 1987); Williams v. Electronic Control Sys., Inc., 68 F.R.D. 703 (E.D. Tenn. 1975); Naismith v. Professional Golfers Ass'n, 85 F.R.D. 552 (N.D. Ga. 1979); Dunlap v. Reading Co., 30 F.R.D. 129 (E.D. Pa. 1962).

³⁸ Stortz By Stortz v. Seier, 835 S.W.2d 540, 542 (Mo. App. E.D. 1992).

³⁹ Dunlap v. Readling Co., 30 F.R.D. 129, 130 (1962).

⁴⁰ Missouri Const., art. I, § 32.1(1); § 595.209.1(1), RSMo Cum. Supp. 2003.

⁴¹ Murphy v. Superior Court In and For Maricopa County, 689 P.2d 532, 538 (Ariz. 1984).

⁴² Id.

⁴³ Wis. Stat. § 895.73 (2002).

⁴⁴ Vt. R. Crim. P. 15(f)(1) (2000).

⁴⁵ Arcaris v. Superior Court In and For Maricopa County, 774 P.2d 837 (Ariz. Ct. App. 1989) (mother of child permitted to be present during deposition in child abuse case).

⁴⁶ State v. Pollard, 719 S.W.2d 38, 42 (Mo. App. E.D. 1986). See also State v. Gollaher, 905 S.W.2d 542, 546-48 (Mo. App. E.D. 1995) (grandfather permitted to hold hand of 8-year-old during her testimony).

⁴⁷ Stortz By Stortz v. Seier, 835 S.W.2d 540, 542 (Mo. App. E.D. 1992).

⁴⁸ Williams v. Electronic Control Sys., Inc., 68 F.R.D. 703 (E.D. Tenn. 1975).

⁴⁹ See Charles N. Davis, "Access to Discovery Records in Florida Criminal Trials: Public Justice and Public Records," 6 U. Fla. J. L. & Pub. Pol'y 297 (1994); Norman Davis, Nonparty Access to Depositions in Florida, 39 U. Miami L. Rev. 157 (1984).

⁵⁰ Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984).

⁵¹ Scollo v. Good Samaritan Hosp., 572 N.Y.S.2d 730 (1991) (trial court reversed for failing to issue protective order barring reporters from attending deposition); Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (Fla. 1987); Ocala Star Banner Corp. v. Sturgis, 388 So.2d 1367 (Fla. Dist. Ct. App. 1980). The Missouri rule limiting the presence of third persons at a discovery deposition should serve to bar reporters. Rule 56(c)(5).

⁵² Shenandoah Publishing House, Inc. v. Fanning, 368 S.E.2d 253 (Va. 1988); Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (Fla. 1987); Lewis R. Pyle Memorial Hospital v. Superior Court of Arizona, 717 P.2d 872 (Ariz. 1986); State ex. rel. Mitsubishi Heavy Indus. Am., Inc. v. Circuit Court for Milwaukee County, 605 N.W.2d 868 (Wis. 2000).

⁵³ Carter v. Utah Power & Light Co., 800 P.2d 1095 (Utah 1990); Ocala Star Banner Corp. v. Sturgis, 388 So.2d 1367 (Fla. Dist. Ct. App. 1980); News-Press Publishing Co., Inc. d/b/a Fort Myers News-Press v. State, 345 So.2d 865 (Fla. Dist. Ct. App. 1977); Sentinel Star Co. v. Booth, 372 So.2d 100 (Fla. App. 1979).

⁵⁴ Rule 57.03(g).

⁵⁵ Shenandoah Publishing House, Inc. v. Fanning, 368 S.E.2d 253 (Va. 1988); Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (Fla. 1987); State ex. rel. Mitsubishi Heavy Indus. Am., Inc. v. Circuit Court for Milwaukee County, 605 N.W.2d 868 (Wis. 2000).

⁵⁶ Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378, 384 (Fla. 1987).

⁵⁷ Section 610.100, RSMo 2000.

⁵⁸ National Prosecution Standards, National District Attorneys Association, § 1.3 (2d ed. 1991); State v. Goree, 546 S.W.2d 785 (Mo. App. W.D. 1977).

⁵⁹ State ex rel. Naes v. Hart, 548 S.W.2d 870, 873 (Mo. App. E.D. 1977).

⁶⁰ Id. at 873-74.

⁶¹ Rules 56.01, 25.12(a) and 25.15(a).

⁶² William J. Brennan, Jr., The Criminal Prosecution: Sporting Event or Quest For Truth?, 1963 Wash. U. L. Q. 279.

⁶³ George James Williams, Jr., A Proposal For Prosecutorial Discovery Depositions in California, 14 San Diego L. Rev. 936, 951 (1977).

⁶⁴ Marian F. Ratnoff, The New Criminal Deposition Statute in Ohio - Help or Hindrance to Justice?, 19 Case W. Res. L. Rev. 279, 289-90 (1968).

⁶⁵ Id. at 287.

⁶⁶ Rule 56.01(b).

⁶⁷ Section 491.060, RSMo 2000.

⁶⁸ State v. Poe, 708 S.W.2d 723 (Mo. App. S.D. 1986).

⁶⁹ State v. Parker, 886 S.W.2d 908 (Mo. banc. 1994); State ex rel. King v. Sheffield, 901 S.W.2d 343 (Mo. App. S.D. 1995). Absent a showing of an actual threat to the safety of a police officer, however, the officer cannot refuse to disclose his or her home address at a deposition. Evanco v. State, 350 So.2d 780 (Fla. Dist. Ct. App. 1977).

⁷⁰ State v. Parker, 886 S.W.2d 908 (Mo. banc 1994).

⁷¹ Rule 25.10; State v. Gray, 926 S.W.2d 29 (Mo. App. W.D. 1996); State v. Coleman, 954 S.W.2d 1 (Mo. App. W.D. 1997); State v. Rollie, 962 S.W.2d 412 (Mo. App. W.D. 1998).

⁷² United States v. Green, 670 F.2d 1148 (D.C. Cir. 1981).

⁷³ State v. Suter, 931 S.W.2d 856 (Mo. App. W.D. 1996).

⁷⁴ Section 211.271.3, RSMo 2000.

⁷⁵ State v. Hicklin, 969 S.W.2d 303 (Mo. App. W.D. 1998).

⁷⁶ State v. Newton, 925 S.W.2d 468 (Mo. App. E.D. 1996).

⁷⁷ State v. Newton, 963 S.W.2d 295 (Mo. App. E.D. 1997); State v. Middleton, 995 S.W.2d 443 (Mo. banc 1999).

⁷⁸ Gamble v. Hoffman, 732 S.W.2d 890 (Mo. banc 1987); Noble v. Lansche, 735 S.W.2d 63 (Mo. App. E.D. 1987); State v. Burton, 721 S.W.2d 58 (Mo. App. W.D. 1986).

⁷⁹ Vt. R. Crim. P. 15(d)(1) (2000).

⁸⁰ Rule 61.01(g).

⁸¹ Rule 61.01.

⁸² State v. Wilkinson, 606 S.W.2d 632, 637 (Mo. banc 1980).

⁸³ State v. Tascarella, 580 So.2d 154 (Fla. 1991).

⁸⁴ State ex rel. Jackson County Prosecuting Attorney v. Moorhouse, 70 S.W.3d 552 (Mo. App. W.D. 2002); State v. Gonzalez, 695 So.2d 1290 (Fla. Dist. Ct. App. 1997).

⁸⁵ Rules 56.01(c) and 25.11.

⁸⁶ Id.

⁸⁷ Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984); Inhofe v. Wiseman, 772 P.2d 389 (Okla. 1989).

⁸⁸ Stortz by Stortz v. Seier, 835 S.W.2d 540 (Mo. App. E.D. 1992).

⁸⁹ State ex rel. Chaney v. Franklin, 941 S.W.2d 790, 794 (Mo. App. S.D. 1997).

⁹⁰ State v. Kuntsman, 643 So.2d 1172, 1174 (Fla. Dist. Ct. App. 1994).

⁹¹ Rodney J. Uphoff, Criminal Discovery in Oklahoma: A Call For Legislative Action, 46 Okla. L. Rev. 381, 411 (1993).

⁹² Rules 25.12(d) and 25.15(d); George v. Eaton, 789 S.W.2d 56 (Mo. App. W.D. 1990); State ex rel Lichtor v. Clark, 845 S.W.2d 55 (Mo. App. W.D. 1992); Mulberry v. Baker, 897 S.W.2d 624 (Mo. App. W.D. 1995).

⁹³ State v. Bailey, 714 N.E.2d 1144 (Ind. Ct. App. 1999).

⁹⁴ State v. Love, 963 S.W.2d 236 (Mo. App. W.D. 1997).

⁹⁵ See note 48 and accompanying text.

⁹⁶ 33 William A. Schroeder, Missouri Practice § 626.1 (2003).

⁹⁷ Rule 25.16. State v. Glaese, 956 S.W.2d 926 (Mo. App. S.D. 1997) (improper to use deposition at trial when defense had not been present at out-of-state deposition and state had simply given notice of the deposition but had not offered to pay reasonable costs for defendant and defense counsel to attend).

⁹⁸ Rule 25.16. State v. Jackson, 495 S.W.2d 80 (Mo. App. W.D. 1973) (in drug sale case, the defense lawyer took the deposition of the informant who bought the drugs, but the defendant was not present at the deposition, nor did he waive the right to be present; the informant later died; it was improper to admit the deposition).

⁹⁹ Rule 25.16. Carter v. Sowders, 5 F.3d 975 (6th Cir. 1993) (prosecutor took deposition of undercover officer without the presence of the defense lawyer, who had shown up, but left, objecting that he could not adequately cross-examine without the presence of his client; deposition inadmissible).

¹⁰⁰ Rule 25.16; Clemmons v. Delo, 124 F.3d 944 (8th Cir. 1997) (it is not enough that the defense lawyer consented to have a deposition taken and read into evidence; the defendant must have expressly waived his right to be present at the deposition).

¹⁰¹ Rule 25.16.

¹⁰² Id. State v. Brookins, 478 S.W.2d 372 (Mo. 1972) (error to admit deposition of rape victim without showing she had become unavailable).

¹⁰³ Rule 25.16.

¹⁰⁴ Schroeder, note 96 at § 804(1).2 (2003).

¹⁰⁵ State v. Hankins, 642 S.W.2d 606 (Mo. 1982).

¹⁰⁶ State v. Dreiling, 601 S.W.2d 660, 662 (Mo. App. S.D. 1980).

¹⁰⁷ Rule 25.13.

¹⁰⁸ State v. Neely, 979 S.W.2d 552, 557 (Mo. App. S.D. 1998).

¹⁰⁹ Id. at 557.

¹¹⁰ Section 491.680, RSMo 2000.

¹¹¹ State v. Nauke, 829 S.W.2d 445, 451-53 (Mo. banc 1992).

¹¹² Id.

¹¹³ Id.

¹¹⁴ State v. Naucke, 829 S.W.2d 445 (Mo. banc 1992); State v. Bewley, 68 S.W.3d 613 (Mo. App. S.D. 2002).

¹¹⁵ State v. Uelentrup, 910 S.W.2d 718 (Mo. App. E.D. 1995).

¹¹⁶ Peter Forbes Langrock, Vermont's Experiment in Criminal Discovery, 53 A.B.A. J. 732 (1967); Katherine L. Hensley, Discovery Depositions: A Proposed Right for the Criminal Defendant, 51 S. Cal. L. Rev. 467, 488-92 (1978); James J. Graney, A Proposal For Discovery Depositions For Criminal Cases in Illinois, 16 J. Marshall L. Rev. 547, 559 (1983); Yetter, note 3 at 684-85.

¹¹⁷ Yetter, note 3 at 678-79.

¹¹⁸ Kamisar, note 3 at 1235.

¹¹⁹ Yetter, note 3 at 690.

¹²⁰ Brennan, note 62 at 295.

¹²¹ Yetter, note 3 at 684.

¹²² Committee on Legislative Research, Oversight Division, Fiscal Note (for HB 586), April 14, 2003. Proponents of discovery depositions argue that elimination of them would force public defender offices to add more lawyers and investigators to conduct "discovery on the hoof." Yetter, note 3 at 690; Michael T. Hodapp, Depositions as a Means of Criminal Discovery, 7 U.S. F. L. Rev. 245, 251 (1973). The Missouri Public Defender System estimated this additional cost at $1.2 million annually.

¹²³ Figures gathered by intern Felicia J. Ford.

¹²⁴ Fla. R. Crim. P. 3.219 (2001). Vermont also recently cut back on the use of depositions from being available in all criminal cases to being generally unavailable in misdemeanor cases. Vt. R. Crim. P. 15(e)(4) (2000); State v. Palmer, 740 A.2d 356, 358 (Vt. 1999).