In some states, and under federal rule, a two-pronged materiality standard applies that permits a court to order depositions in exceptional circumstances and in the interest of justice to preserve testimony for trial. Under a state statute governing depositions in criminal cases, the burden is on the defendant requesting a deposition to establish necessity.

Federal Rule of Criminal Procedure 15 authorizes the taking of depositions under certain circumstances in criminal cases. Unlike civil cases, depositions in criminal matters may be required only by court order and may not be used for discovery purposes. Rule 15(a)(1) permits a party to move for such an order only to depose its own witnesses, as opposed to those of another party. Such orders are granted only when, "in the interest of justice," the testimony must be taken and preserved before trial in order to cope with "exceptional circumstances."

Back Forward