No Depositions for Defendants in Federal Criminal Cases

Many people are surprised to learn that the defense attorney in a federal criminal case has no right to take a pretrial deposition. Federal criminal prosecutions cover all kinds of cases including drug dealing, tax crimes, securities fraud, theft of government property and even possessing a Bald Eagle feather. The list of federal crimes is quite extensive and punishment can include decades in prison depending upon the crime.

Mark L. Horwitz

Mark L. Horwitz

A deposition is a way for the defendant’s lawyer to learn what the government witnesses know about a case. In civil cases, in state and federal court, the parties exchange witness lists and before trial both sides can require witnesses to appear before a court reporter and answer questions under oath. In a Federal criminal case, however, the government does not have to disclose its witnesses to the defense unless the witness is an expert. Also, the defense lawyer, even if aware of potential witnesses has no right to take their deposition unless special circumstances exist such as the witness is ill and may not survive. Many question why depositions are allowed in civil cases when people are fighting over money or property but not in a criminal case when a citizen’s liberty is at stake.

A federal prosecutor has no legal requirement to disclose witnesses prior to trial and so a defendant may learn of a witness for the first time when the government brings that person into court to testify before the jury. That is why some have called a federal criminal trial ‘a trial by ambush’. In addition, the government in a federal criminal case has no obligation to take a sworn statement from a witness during the course of its investigation. If the government does get a sworn statement from a witness, the government attorney is not required to disclose it to the defense until after the witness is examined by the federal prosecutor at the  trial.

The reasoning behind such rules is based upon the belief that the witnesses, if disclosed, may be in danger. While that is possible, in reality, threats and intimidation of witnesses in federal as well as state criminal cases are rare. Many have suggested that a more appropriate rule would be that witnesses should be disclosed before trial and depositions allowed before trial unless the government can establish to the judge a realistic concern for the safety of a witness.

While federal prosecutors and investigators work diligently to make a criminal case, mistakes can happen and the government is not always right. Ultimately, a   jury has to decide. In order that the jury be presented with all important information, our justice system would be better served if the attorney for the defendant was provided the names of all government witnesses and allowed to take their depositions prior to trial.

Law Offices of Mark L. Horwitz, P.A.
17 East Pine St.
Orlando, FL 32801
P: 407-843-7733
F: 407-849-1321