Section 39.02 of the Texas Code of Criminal Procedure allows for the deposing of witnesses in criminal defense matters and on its face it does not require the unavailability of witnesses or anything like that, but if either side knew the witnesses may be unavailable, getting this information recorded could outweigh the perceived benefit of the State not having the people it needs to prove beyond a reasonable doubt that a crime was committed.
Two times deposing a witness could be an invaluable tool for resolving a case include witness unavailability or anticipated unavailability and when you are wanting to depose young or less-mature witnesses who could not handle the pressure of being in court (may be more advantageous to subject them to that atmosphere). Also, this could be a great tool for the court or prosecutors as it may allow for cases that would otherwise be tried to be resolved outside of a court, thus saving the county money for trial expenses, and it would prevent the inconveniencing of jurors if dispositive testimony is obtained in the deposition that would allow for resolution of the case.
Texas criminal defense attorneys must investigate their client’s case and this usually involves witness interviews.. a touchy subject in cases involving family violence and instances where the allegations are very personal. However, we cannot always get a party to make him or herself available for said meeting. And, even if they do make themselves available, these meetings do not result in recorded, admissible evidence, generally, that would help the case. Instead, the defense attorney knows what was said and may have a better understanding of the case and facts but it may not be in a format that translates to something the prosecutor wants for her file to justify / take the action requested by the defense attorney (dismissal?).
Not only does this involve doing a thorough job on our client’s behalf, but it is required by the Texas Court of Criminal Appeals in order to avoid being labeled as ineffective….
Granted, there is broad concern among the defense attorneys in central Texas that it is a waste of time to request a deposition of a witness because most believe that a judge will just summarily deny the application and request. But in my opinion, it makes sense to request it, get denied and then have one more possible point of error (not likely to succeed) for a future appeal. But, if we do not try to get the approval, we will certainly not get it.
In fact, another criminal defense attorney, Stephen Gustitis wrote in his blog, The Defense Perspective:
There is more law supporting your right to take depositions than you might realize.
Art. 39.02, TCCP, provides for deposing witnesses when “good reason exists for taking the deposition,” and requires the filing of “an affidavit stating the facts necessary to constitute a good reason for taking the witness’ deposition and an application to take the deposition.” You must file both the affidavit and the application. A sworn application alone is not enough. You must request and conduct a timely hearing. Advancing an application at trial constitutes waiver.
In sum, we all need to work harder and use all the tools available to us in the Texas Code of Criminal Procedure because we all know, or at least the cynics among us know, that the chance of success on appeal is minimal. And why should we assume the worst, ask for what you need and maybe, hopefully, you will get it to help your client.