Thank you very much.
Is the defense required to turn over copies of the depositions they take?
I'm unclear about that and have read where other people are saying that the defense is not turning anything over. What must they turn over?
Let's be clear on what a "deposition" is. A deposition is the examination of a witness, under oath, compelled by the issuance of a subpoena (or, in a civil case, of a party, under oath, compelled by a notice of deposition--in a criminal case, the state is an entity and the defendant can't be compelled to testify at all, hence the absence in criminal procedure of this form), at which all parties are entitled to attend and ask whatever questions they will of the witness. The deposition can be transcribed by a court reporter, videotaped, audiotaped or I suppose technically none of the above, but then there would be no record of the deposition.
All parties to a case have the right to attend the deposition of any witness called in the case and to make inquiry of the witness. Any party to the case has the right to purchase their own copy of the transcript of the proceedings made by the court reporter. The court reporter is considered a neutral entity--a de facto arm of the court--and will provide a transcript for any party who lays their money down. (It is common, but considered somewhat slimy by court reporters, for the lawyers for two parties to order a single transcript and then make a xerox copy for the other party. Each person is *supposed* to order their own transcript. The court-reporting profession has been hit hard indeed by the rise of cheap, high-quality video equipment, although for some purposes there is really no substitute for a written transcript).
Now, an INTERVIEW of a witness, even if there is a court reporter present to make a transcript and even if the witness takes an oath that he or she is telling the truth, is not a DEPOSITION. The other side has no absolute right to participate in interviews. The tricky part about interviews is that your witness may or may not talk to you if you just call them up and try to interview them absent the legal force of a subpoena. Witnesses also have been known to clam up and refuse to supply information in front of a tape recorder or court reporter that they previously provided off-the-cuff. Interviews of witnesses can indeed, in my mind, be considered work product, particularly if the lines of questioning reveal the lawyer's theory of the case, thoughts and impressions. The defense may be resisting turning over transcripts of interviews.
I have a dim recollection of some quirk of Florida criminal law (not my part of the country) regarding the effect of listing someone as a witness--I think it subjects the witness to deposition by the other side, but don't rely on my recollection. So that's what some of the battles about delaying witness lists are about.
