We are lucky that our state permits criminal defense attorneys (and prosecutors) to take sworn testimony from witnesses, both civilian and officer, in all felony cases. Traditionally, depositions are not allowed in misdemeanor cases unless good cause is shown by the party wishing to take the deposition.
A deposition is an opportunity for an attorney to ask questions of a witness while the witness is under oath. Depositions are recorded by court reporters and then transcribed so that the attorneys may later cross-examine these witnesses based on the testimony they gave during their deposition.
Many felony cases, especially third-degree felonies (aggravated assault, grand theft, burglary of a structure), are poorly investigated by the police. This is not because the police do not care about third-degree felonies. It's because the detective units are mainly set up to address violent felonies, such as murder and robbery.
When a third-degree felony occurs, police arrive at the scene, take brief statements from witnesses, and then conclude their investigations. Therefore, the witness statements and police reports are usually bare bones - offering very little information of value other than what is needed to substantiate the charge.
A deposition permits a criminal defense attorney to not only question the witnesses on what they allegedly saw or experienced, but to gather more information than what is provided initially.
A good criminal defense lawyer can literally win his or her case through depositions. Depositions are not just a formality. They are an invaluable investigative tool.
Witnesses may recant in their depositions. They may change their stories completely. They may add or omit facts. Officers may completely contradict their original reports.
At trial, a witness will be impeached with their deposition. That is, a criminal lawyer will cross-examine the witness, comparing their original statement to their deposition testimony to their trial testimony. You may have a witness who has given three different accounts of the same event! This raises serious doubt in the minds of the jurors as to whether the witness is telling the truth.
Even before trial, a good deposition can lead the prosecutor to discover the weaknesses in their case. They may reduce a charge, offer a very good plea, or dismiss a charge outright based on the testimony of a witness during a deposition.
Depositions should be taken on almost every felony case. Depositions, however, cost money. Depositions are not covered by your traditional legal fees. They are considered extra. You may pay the costs out of pocket if you have the money (the average cost of a felony deposition, including court reporter and transcription is about $300 per deposition) you can pay it. If you do not have the money, your criminal lawyer can file a specialized motion asking the State of Florida to pay the costs of your litigation.
Just because you hire a private criminal defense attorney does not mean that you are rich. Many hard-working people can save and gather the money to retain a private attorney but are not left with enough to pay the costs.
No problem. The State of Florida will likely pay for your deposition costs. I file these motions on many of my cases.
I believe that it is a criminal defense attorney's job to seek the truth. The truth comes through active investigation. This means that depositions are taken.
Many people, dissatisfied with their present attorneys, call me and complain that their attorneys have not taken depositions. That is wrong. Demand that your attorney take depositions! It could be the difference between prison and freedom.
I practice criminal defense in Miami-Dade County and Broward County. I am a former Miami-Dade Assistant State Attorney who has handled thousands of cases, tried about 40, and taken countless depositions.
If you would like to speak with me regarding your case, call me and we can schedule a free, confidential consultation.