By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal
Knowledge is power. A good criminal defense lawyer will want to know as much of the State’s case as conceivably possible. Most of the time that will probably only be through the police reports, an independent investigation, or what witnesses will tell you voluntarily. Depositions in civil cases are common but depositions in criminal cases in Texas courts are extremely rare.
Depositions serve two main functions; (1) discovery — or learning the facts of the case; and (2) to nail down a witness’ version of events for later impeachment. Insurance companies and civil lawyers know all to well that not many people give identical versions of events on multiple occasions. They get as many witness statements from the same witness as possible to exploit inconsistencies or weaknesses.
Texas Code of Criminal Procedure 39.02 allows a defendant to petition the Court for a deposition if the defendant can show “good reason” for needing the deposition. It is such a rarity that most trial judges probably won’t see the utility in allowing a deposition of a police officer though. In all likelihood, depositions in criminal cases are reserved for instances where a witness may not be available later for trial. If anything, the law allows the prosecution just as much or more leeway with deposing a witness or an alleged victim. Section 39.025 requires that if the alleged victim is over 60 years old or disabled then the deposition must be taken by the prosecution no later than 60 days after the deposition is requested.
All is not lost for the accused though. There are a few different mechanisms that allow deposition-like examinations of a police officer prior to trial. An example is an Administrative Law Review (“ALR”) in a DWI case to determine whether a driver’s license should be suspended or denied. Another example is what is known as an “examining trial” in felony cases to determine if the State has probable cause to hold someone in jail accused of a Felony prior to presentment to the Grand Jury. These are both instances where an officer can be sworn-in under oath with a record that can be used later. A good criminal defense lawyer knows how to seize these opportunities for discovery.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice you should consult an attorney directly.