An important part of an effective criminal defense strategy occurs in the discovery phase of the process, when both sides take depositions of witnesses. Depositions are sworn testimony given by witnesses out-of-court. Both prosecutors and defense lawyers use them to gather pertinent information about the case. They are set up in a question-and-answer format, typically with the witness, prosecutor, defense lawyer, and court reporter present. Witnesses are subpoenaed by the court, meaning they must appear and testify even if they don’t want to (though they may plead the Fifth to avoid self-incrimination). Not all information gleaned from the depositions will be allowed to be presented at trial (if the case gets that far), but it gives both sides a good idea of how witnesses will testify.
The idea is to evaluate witnesses, gather information, gain admissions, solidify trial testimony (“lock-in” witnesses to a certain version of events), identify theories and themes, and authenticate documents (such as police records and medical paperwork).
Recently, the Florida attorney general voiced support for proposed legislation that would prevent alleged victims in certain types of cases being compelled to testify in depositions. Offenses to which the rule would apply would include:
- human trafficking
- domestic violence,
- aggravated cyberstalking
- child custody offenses
- human smuggling
- lewd/lascivious offenses
- child abuse
- child neglect
- traveling to meet a minor
According to a press release from the state attorney general’s office, SB 1208 and HB 1037 would “help prosecutors secure convictions” in human trafficking and other cases.
From the perspective of a Fort Lauderdale defense lawyer, this raises some alarm bells – specifically with regard to due process rights. Furthermore, the criminal justice system was not set up to make it easy to secure criminal convictions – for good reason. It was always intended that defendants would be presumed innocent until proven guilty by the highest proof standards. The Sixth Amendment guarantees those accused of a crime the right to confront witnesses against him/her in a criminal action. Shielding accusers in a criminal from lawful depositions by defense lawyers may potentially undercut this right.