IV. ARRAIGNMENT AND PRETRIAL

217

Rule 15: Depositions.

(a) When Taken.

(1) In General. A party may move that a prospective witness be deposed in order to preserve testimony for trial. Any such motion may be filed at any time after the defendant's initial appearance before a magistrate and after the defendant has been afforded counsel. Such motion shall be filed in a court of record. The court may:

(A) grant the motion because of exceptional circumstances and in the interest of justice; and

(B) order that the witness produce at the deposition any designated, non-privileged book, paper, document, record, recording, or other material.

(2) Detained Witness. A witness who is detained for failure to give bail to appear to testify at a trial or hearing may request to be deposed by filing a written motion and giving notice to the parties. The court may then order that the deposition be taken and may discharge the witness after the deposition is subscribed.

(3) By Written Agreement of the Parties. The district attorney general and the attorney for the defendant may take the deposition of a witness by written agreement of the parties without the necessity of court approval.

(b) Notice of Taking.

(1) To the Parties. A party at whose instance a deposition is to be taken shall give every other party reasonable written notice of the deposition’s time and location. The notice shall state each deponent’s name and address. On its own initiative or on motion of a party receiving this notice of a deposition, the court may change the deposition’s time or location for good cause.

(2) To the Custodial Officer. The officer having custody of a defendant shall be notified of the time, date, and location of the deposition.

(c) Defendant’s Presence.

(1) Defendant in Custody. The officer who has custody of a defendant shall produce the defendant at the deposition and keep the defendant in the witness’s presence during the examination unless:

(A) the defendant waives in writing the right to be present; or

(B) the defendant persists in conduct justifying exclusion from the place of the deposition after being warned by the court that disruptive conduct will result in the defendant’s exclusion.

(2) Defendant not in Custody. A defendant who is not in custody has the right, on request, to be present at the deposition, subject to any conditions imposed by the court. If the state provides notice of the deposition and tenders expenses as provided by Rule 15(d) but the defendant still fails to appear, the defendant–absent good cause–waives both the right to appear and any objection, based on that right, to the taking and use of the deposition.

(d) Expenses. If a deposition is taken at the instance of the state or of a defendant who is unable to pay the deposition expenses, the court may order the state to pay:

(1) the expense of the defendant and defendant’s attorney for travel and subsistence to attend the deposition; and

(2) the cost of the deposition transcript.

(e) Manner and Place of Taking.

(1) In General. Unless these rules or the court provides otherwise, a deposition shall be taken and filed in the manner as a deposition in civil actions, except that:

(A) a defendant may not be deposed without his or her consent; and

(B) the scope and manner of examination and cross-examination are the same as allowed at trial.

(2) Deponent’s Prior Statements. The state shall provide to the defendant or the defendant's counsel, for use at the deposition, any statement of the deponent which is in the state’s possession and to which the defendant would be entitled at trial.

(3) Place of Taking. A deposition may be taken in a location authorized by Rule 17(e).

(f) Use as Evidence.

(1) In General. At the trial or in any hearing, a party may use a part or all of a deposition –otherwise admissible under the Tennessee Rules of Evidence–as substantive evidence if:

(A) the witness is unavailable as defined in Rule 15(h); or

(B) on motion and notice, the court–in the interest of justice with due regard to the importance of presenting the testimony of witnesses orally in open court–finds such exceptional circumstances exist that make it desirable to allow the deposition to be used.

(2) Contradiction or Impeachment. Any party may use any deposition to contradict or impeach the testimony of the deponent as a witness.

(3) Completeness. If only part of a deposition is offered in evidence by a party:

(A) an adverse party may require the party to offer all of the deposition that is relevant to the part offered; and

(B) any party may offer other parts of the deposition.

(g) Objections to Deposition Testimony. A party objecting to deposition evidence or testimony shall state the grounds for the objection during the deposition.

(h) Unavailability.

(1) Definition. Unavailability of a witness under Rule 15(f) means situations in which the declarant:

(A) is exempted by court ruling on the ground of privilege from testifying concerning the subject matter of the declarant's statement;

(B) persists in refusing to testify concerning the subject matter of the declarant's statement despite a court order to do so;

(C) demonstrates a lack of memory of the subject matter of the declarant's statement;

(D) is unable to be present or to testify at the hearing because of the declarant's death or then existing physical or mental illness or infirmity; or

(E) is absent from the hearing and the party seeking to introduce the declarant’s statement has been unable to procure the declarant's attendance by process or other reasonable means.

(2) Exception for Wrongdoing. A declarant is not unavailable as a witness if the declarant's exemption, refusal, inability, or absence is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying.

Advisory Commission Comment.

Since the Code of 1858, Tennessee has long provided that the accused may, by order of the court, have the depositions of witnesses taken in the manner prescribed for taking depositions in civil cases, on notice to the district attorney general. Rule 15 extends to the state the same potential use of depositions.

Prior law was that depositions could only be taken by leave of the court, and not upon agreement of counsel without such a court authorization. Curtis v. State, 82 Tenn. 502 (1884). This rule modification–included as part of the 2006 revision–alters the prior law, and parties may now take depositions by written agreement.

Apart from depositions taken by agreement, the commission also wants to make clear that depositions are not meant to function as discovery devices in criminal cases. Their taking is meant to be tightly confined to those exceptional cases where the interests of justice require the taking for the preservation of testimony for use at trial, and not for discovery.

This rule conforms to its federal counterpart, except that the commission added section (f)(1) to permit the use of a deposition as proof under extraordinary circumstances in the interest of justice.

Paragraph (h)(1)(C) makes lack of memory a ground of unavailability in conformity with Evidence Rule 804(a)(3).

Advisory Commission Comment [2010].

The amendment to Rule 15(f)(1)(A) corrects a cross-reference.

Advisory Commission Comment [2014].

Rule 15(a)(1) was amended by adding the second and third sentences, which provide that a motion to take the deposition of a prosepective witness may be filed at any time after a defendant's initial appearance before a magistrate as required by Tenn. R. Crim. P. (5)(a)(1) and that such motion shall be filed in a court of record. The amendment did not affect any other provision of Tenn. R. Crim. P. 15 and in no way altered the requirement that depositions taken pursuant to this rule are for the preservation of testimony for use at trial and not for discovery. The amendment's requirement that a motion for a deposition be filed in a "court of record" signifies that such motions are not within the jurisdition of the general sessions court under Tenn. R. Crim. P. 1(b).

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