Using Depositions in the Courtroom
| Publication year | 2010 |
| Pages | 49 |
| Citation | Vol. 39 No. 4 Pg. 49 |
2010, April, Pg. 49. Using Depositions in the Courtroom
April 2010
Vol. 39, No. 4 [Page 49]
Judges' Corner is published quarterly to provide information Colorado judges would like to disseminate to attorneys. If you would like to suggest topics or write an article for this Department, send an e-mail to Coorindating Editor Alan Loeb, Colorado Court of Appeals Judge, at alan.loeb@judicial.state.co.us.
About the Author
Jack W. Berryhill has been a district court judge with the First Judicial District in Jefferson and Gilpin Counties since 2000. Before that, he was in private civil practice for twenty-five years, focusing on business litigation.
complicated than trying a case. There are an almost infinite number
of variables
in that courtroom, and you have to be aware of as many
of them
as you can. You have to be conscious 360 degrees
around you.
Irving Younger
Credibility and Cross Examination(fn1)
I keep on the Bench this concise and handy booklet written by the late Irving Younger, formerly Professor of Trial Techniques at Cornell Law School. In it, Younger describes the "nine ways to discredit on cross-examination." One way often seen in the courtroom is to discredit or impeach a witness with a prior inconsistent statement. In civil cases-and occasionally in criminal cases-this typically involves using a deposition containing prior sworn testimony.
Depositions have other uses in the courtroom. How they should be used depends, to use Professor Younger's terminology, on the elected "mode." In addition to the impeachment mode, depositions can be used as evidence of admissions, in lieu of live testimony, and to refresh recollection.
It is important not to mix modes. Sometimes, a trial attorney will hand a deposition to a witness to "refresh his recollection." What the attorney really intends to do is impeach the witness with a contradictory statement. If you simply want to refresh the witness's memory, you will proceed under C.R.E. 612, giving the witness the transcript (previously marked for identification), and asking him or her to read it silently before posing the next question. However, if you intend to confront the witness with an inconsistent statement in the deposition, you may want to comply with the rule in Queen Caroline's case,(fn2) which allows you to lay the foundation when the prior statement is in writing by giving the statement to the witness to read aloud. C.R.E. 613 has partially relaxed the foundational requirements; you need not show the witness the exact statement to which you are referring, but you may find it preferable to do that.
This article discusses how each of these deposition modes can be used in the courtroom. By knowing the rule of evidence or procedure that governs the mode, as well as some case authority construing it, you will be able to proceed smoothly and confidently in trial and be prepared to meet any objections from your opponent.
Impeachment
When impeaching an adverse witness with a deposition, counsel should educate the jury about thesefacts:
1) the witness was under oath when the deposition was taken;
2) the witness was represented at the deposition by an attorney;
3) the witness read and signed the transcript; and
4) the witness was given an opportunity to correct the transcript (although the fact that the deposition has neither been corrected nor signed by the witness does not preclude its use in court(fn3)).
If the deposition is used to impeach the witness at trial, it is persuasive to let the jury know that the deponent was specifically instructed to read through the deposition and make any desired corrections. Therefore, I strongly recommend that the deposing attorney not waive the deponent's reading and signing of the deposition.
Rule 30(e)(fn4) places no limitations on the types of changes (form or substance) that a witness may make to a deposition transcript before signing it.(fn5) However, if the correction involves a substantive change, the original answer can be used at trial by the opponent. The witness is then free to introduce the amended answer and explain the reasons for the change.(fn6) Depending on the nature and extent of the changes, counsel may be permitted to re-depose the witness regarding the reasons for the changes and whether they originated with the deponent or with opposing counsel.(fn7) Remember also that Rule 26(e) imposes a duty to amend or supplement deposition testimony that has become or is subsequently discovered to be incorrect.
In the impeachment mode, counsel is not restricted to using only depositions taken in the same case. Appel v. Sentry Life Insurance Co.(fn8) held that an adverse witness can be impeached with a deposition taken in an unrelated case without complying with Rule 32(a) (which requires that the adverse party either was present or had the opportunity to be present at the deposition). The Colorado Supreme Court observed that Rule 32(a) imposes no limitation on C.R.E. 613, which allows impeachment by inconsistent statement.
However, the Court in Appel did require that Rule 32(a) be followed where deposition statements are offered as substantive evidence, without noting that this appears to be inconsistent with C.R.E...
To continue reading
Request your trial