Depositions in Criminal Cases

Criminal defense lawyers have a duty to investigate their client's case and interview witnesses. The clients expect it and so do the courts. The Court of Criminal Appeals has repeatedly held that defense counsel "has a responsibility to seek out and interview potential witnesses . . .  and the failure to do so may be ineffective, if not incompetent . . . "

To this end, in this month's "Voice for The Defense," William Copeland writes about interviewing State's witnesses through a seldom utilized article of the Texas Code of Criminal Procedure, (art. 39.02). Copeland writes:

The provisions of the Texas Code of Criminal Procedure (Art. 39.02) for deposing witnesses are among the most helpful and least utilized tools available to a criminal defense attorney. Defense lawyers seldom attempt to depose State witnesses because of the perception that judges will summarily deny the required judicial authorization. Some judges will be resistant to applications for depositions, but others will be receptive. No judge is going to do it sua sponte—you have to ask. 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.

So criminal defense attorneys have an out when confronted with a witness who refuses to speak to them, or the defense investigator. Use the Code of Criminal Procedure to compel the uncooperative witness to talk. Furthermore, interviewing State witnesses is essential in providing effective assistance of counsel.