Section 19.31 Use of Depositions in Court

• Library: Family Law Deskbook and 2014 Supp

H. (§19.31) Use of Depositions in Court

Rule 57.07(a), regarding the use of depositions in court proceedings, was amended effective January 1, 2002, to provide the following:

Any part of a deposition that is admissible under the rules of evidence applied as though the deponent were testifying in court may be used against any party who was present or represented at the taking of the deposition or who had proper notice thereof. Depositions may be used in court for any purpose.

Therefore, among other things, counsel wishing to use a deposition in court is no longer required to prove the deponent’s unavailability to testify.

The burden of establishing admissibility is on the proponent of the deposition testimony. Elmahdi v. Ethridge, 987 S.W.2d 366 (Mo. App. W.D. 1999); Henson v. Bd. of Educ., Wash. Sch. Dist., 948 S.W.2d 202 (Mo. App. E.D. 1997). A court’s wrongful refusal to allow a deposition to be read into the record at trial may not amount to reversible error if the decision was not prejudicial. See Soper v. Bopp, 990 S.W.2d 147 (Mo. App. S.D. 1999).

The following are some uses of depositions:

· A party may take his or her own deposition for use at trial in the party’s absence. Friend v. Morrow, 558 S.W.2d 780, 789 (Mo. App. E.D. 1977); State ex rel. Chandler v. Scott, 427 S.W.2d 759 (Mo. App. E.D. 1968). But a party’s own deposition taken on written questions may not be introduced by the party unless proper and sufficient notice was given to the opposing party. Mincey v. Blando, 655 S.W.2d 609 (Mo. App. W.D. 1983).

· An absent party’s unsigned deposition may be offered on the party’s behalf on the theory that the offer of the deposition vouches for its accuracy as well as if by signature. Will Docter Meat Co. v. Hotel Kingsway, 232 S.W.2d 821 (Mo. App. E.D. 1950). This is also true of a deposition offered by the representative of a deceased party who died without signing the deposition. Coffel v. Spradley, 495 S.W.2d 735 (Mo. App. W.D. 1973).

· A deposition may be used to impeach a witness with prior inconsistent statements. Engelbert v. Flanders, 670 S.W.2d 19 (Mo. App. W.D. 1984). If a witness’s deposition is introduced at trial in the witness’s absence, some courts have held that the witness must be given an opportunity during the deposition to explain inconsistent statements, see Powell v. Norman Lines, Inc., 674 S.W.2d 191 (Mo. App. E.D. 1984), while others indicate that the deposition testimony may be impeached by subsequent testimony when...