Do depositions have a role in criminal law in Texas?


A deposition is the sworn testimony of a witness that is taken out-of-court. This testimony is reduced to writing and may be used in a trial. Although depositions are a common occurrence in civil cases, they are rarely used in criminal cases in Texas. Although this is true, depositions do have a role in criminal law in Texas.

The Law

Chapter 39 of the Texas Code of Criminal Procedure (TCCP) outlines when and how a deposition may be used in a criminal case.

The Code of Criminal Procedure 39.01 lists the situations in which taking a deposition is allowed. In Texas, a deposition may be taken by either the state or the defendant. A deposition may be taken in a criminal case in Texas when the witness resides outside the state, the witness cannot attend trial by reason of age or bodily infirmity, or the witness is a Medicaid or Medicare recipient or caregiver or guardian of the recipient and the recipient’s account was charged for a product or service that was not provided to the recipient.

The process for seeking a deposition in a criminal case is explained in TCCP 39.02. A deposition may be sought by filing an affidavit with the clerk of the court stating the facts necessary to constitute a good reason for the deposition and an application to take the deposition. In addition, notice of the deposition must be given to the opposing party.

If the court determines good reason for the deposition, the testimony of a deposition must be subject to all legal objections. In addition, both the defendant and defendant’s attorney must be present and given the opportunity to examine the witness.

In Practice

I recently had the pleasure to take part in the use of a deposition in a capital murder trial. Before the trial, the witness’ testimony was sworn, taken in front of a notary public, and reduced to writing. The witness was subject to both direct and cross-examination. At trial, the entire testimony was put in front of the jury via a role-playing.

Charged with a crime in Texas? Contact the criminal defense attorneys at Madrid Law, PLLC as soon as possible.

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