Depositions in Criminal Cases: State Rules, Article 49, and Costs

Depositions in criminal cases are tightly restricted: federal and military courts allow them only to preserve a witness’s testimony when that witness is unlikely to make it to trial, and even then the transcript can be used in front of a jury only if the defendant had a real opportunity to cross-examine. A minority of states permit broader pretrial depositions as a discovery tool, but the constitutional rules on admissibility apply everywhere. The result is a proceeding that looks something like a civil deposition on the surface and functions very differently underneath.

When a Court Will Allow One

Federal Rule of Criminal Procedure 15 lets either the government or the defense move for a deposition, but only to preserve testimony for trial, and only on a showing of exceptional circumstances and a finding that justice requires it.¹ Live testimony in front of the jury is the default, and judges are not looking to approve anything that resembles a fishing expedition.

The motion has to establish two things. First, materiality: the witness knows specific facts that bear on the charges, spelled out concretely enough that the court can see the connection to what the prosecution or defense needs to prove. Second, unavailability: a reason the testimony will be lost without the deposition. The supporting proof varies with the circumstance.

Death or terminal illness, shown through a death certificate or a physician’s letter describing the condition and prognosis.
Relocation outside the jurisdiction, with documentation of the current residence and evidence the witness will not return voluntarily.
A witness beyond the court’s subpoena power, where no process can compel attendance.
A service member whose orders or official duty status prevent release for trial.

Rule 15 sets no fixed deadline for the motion relative to trial, but a late filing risks denial as untimely or disruptive to the schedule.¹ The opposing party gets a chance to respond before the judge rules. And a granted motion only authorizes the deposition. Whether the resulting transcript actually comes into evidence at trial is a separate decision governed by the Federal Rules of Evidence and the Constitution.

How State Rules Differ

State systems split into two camps. The majority mirror the federal approach, allowing depositions only to preserve the testimony of a witness expected to be unavailable at trial. The bar is the same: serious illness, advanced age, imminent departure from the jurisdiction, or similar risk.

A smaller group permits discovery depositions in criminal cases, closer to how civil litigation works. Florida is the most prominent example, letting either side depose any witness at any time after charges are filed. Judges in those states still control scope, deadlines, and conduct, but defense counsel gets a far clearer view of the government’s case before trial than federal practice allows.

One practical limit cuts across both camps: a state court’s subpoena power stops at its border. When a necessary witness lives in another state, the parties rely on the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, which every state has adopted in some form. The requesting court certifies the witness is material; a court in the witness’s home state then holds a hearing before compelling attendance.

Military Depositions Under Article 49

In the military system, Article 49 of the Uniform Code of Military Justice, codified at 10 U.S.C. § 849, governs. A convening authority or military judge may order a deposition at any party’s request, again only on a showing of exceptional circumstances and that preserving the testimony serves the interest of justice.² The standard tracks the federal civilian rule.

What distinguishes military practice is how often unavailability is realistic. A witness more than 100 miles from the trial location, or one whose duties prevent attendance due to military necessity, illness, or imprisonment, may qualify as unavailable for purposes of using deposition testimony at the court-martial. The deposition is taken before an impartial officer, ideally a certified judge advocate, with trial counsel and defense counsel both participating and the accused represented as at trial.²

One restriction is worth flagging. In capital cases, deposition testimony can only be offered by the defense. The prosecution cannot introduce a deposition transcript when the death penalty is on the table.²

Why Cross-Examination Decides Admissibility

The Sixth Amendment guarantees every criminal defendant the right to confront the witnesses against them.³ In Crawford v. Washington, the Supreme Court held that testimonial statements from an absent witness are admissible only when the witness is unavailable and the defendant had a prior opportunity to cross-examine. The Court was explicit that cross-examination is the constitutional test of reliability, not a judge’s later impression of whether the statement seems trustworthy.⁴

This is the dividing line between civil and criminal depositions. A civil transcript comes in with relatively few hurdles. A criminal transcript has to clear the Confrontation Clause. If the defendant was given a genuine chance to cross-examine at the deposition and the witness is later unavailable, the testimony is admissible. If not, the transcript stays out, no matter how reliable it looks.

Federal Rule of Evidence 804 defines unavailability. A witness qualifies when they are exempt from testifying due to privilege, refuse to testify despite a court order, cannot testify because of death or serious physical or mental illness, or are absent and cannot be brought to court through reasonable efforts. A party cannot engineer unavailability and then benefit from it.⁵

The practical takeaway for anyone preparing a deposition is that corners cut now are evidence lost later. Limiting cross-examination, excluding the defendant, or rushing through objections can render the whole transcript useless when it matters.

How a Criminal Deposition Is Conducted

Once the court grants the motion, the requesting party must give every other party reasonable written notice of the date and location, along with each witness’s name and address.¹ A court reporter or other qualified officer administers the oath and records the testimony. Stenographic transcription is standard; video recording has become common because it captures tone and demeanor a transcript cannot.

The defendant’s presence is enforced. If the defendant is in custody, the custodial officer physically brings them to the deposition and keeps them in the witness’s presence throughout. The defendant can waive attendance in writing, and persistent disruption after a warning can lead to exclusion. A defendant who is not in custody has the right to attend on request; if the government covers travel expenses and the defendant still fails to appear without good cause, both the right to attend and any later objection based on absence are forfeited.¹

Foreign depositions carry additional requirements. The court must find that the testimony could provide substantial proof of a material fact in a felony case, that the witness is unlikely to attend trial, and that the witness cannot be brought to the United States. When the defendant physically cannot travel to the foreign country, the deposition may proceed without them, but only if the court finds the defendant can meaningfully participate through reasonable means.¹ The deposition must also comply with the law of the country where it is taken.

Defense counsel conducts cross-examination as at trial, and objections to testimony or evidence have to be raised during the deposition. When questioning ends, the court reporter prepares and certifies the transcript, which is filed with the court. If the witness is unavailable at trial and the testimony clears both the Rules of Evidence and the Confrontation Clause, the judge may permit the transcript to be read or the video played for the jury.¹

Who Pays

Depositions generate real costs: court reporter fees, transcripts, travel, and lodging. When the government requests the deposition, the court has discretion to order the government to cover the defendant’s reasonable travel and subsistence plus the transcript. When the defendant is indigent, the court must order the government to pay those expenses regardless of who requested the deposition.¹

Witnesses receive a federal attendance fee of $40 per day, covering travel time as well. A witness who drives is paid at the mileage rate the General Services Administration sets for federal employee travel, and a witness staying overnight receives a subsistence allowance capped at the GSA per diem for that area, with higher rates in designated high-cost locations.⁶

What Happens If a Witness Doesn’t Show

A witness who ignores a deposition subpoena in a federal criminal case faces contempt of court. Under Federal Rule of Criminal Procedure 17, the court may hold in contempt any witness who disobeys a subpoena without adequate excuse.⁷ Sanctions can include fines and, in extreme cases, incarceration until the witness complies. The requesting party ordinarily files a motion to compel first, giving the witness another chance to appear. Attorneys who obstruct the deposition, by instructing a witness not to answer proper questions or coaching testimony, also face sanctions.

1
Legal Information Institute. Federal Rules of Criminal Procedure Rule 15 – Depositions
2
Office of the Law Revision Counsel. 10 USC 849 – Art. 49. Depositions
3
Legal Information Institute. U.S. Constitution – Sixth Amendment
4
Justia U.S. Supreme Court. Crawford v. Washington, 541 U.S. 36 (2004)
5
Legal Information Institute. Federal Rules of Evidence Rule 804 – Hearsay Exceptions, Declarant Unavailable
6
Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally
7
Legal Information Institute. Federal Rules of Criminal Procedure Rule 17 – Subpoena