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Civil procedure in the United States
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In law, a deposition is witness's out of court testimony that is reduced to writing for later use in court or for discovery purposes Black's Law Dictionary.[1] In many countries, depositions are given in courtrooms. In the United States, they are usually taken elsewhere. In the United States, it is taken during an Examination Before Trial (EBT), a part of the discovery process in which litigants gather information in preparation for trial. Some jurisdictions recognize an affidavit as a form of deposition. The routine practice of obtaining the oral evidence of a witness before trial is foreign to common law jurisdictions such as England, Australia and New Zealand. Having the right to pose oral questions to opposing parties in litigation before trial developed in Canada and the United States in the nineteenth century.

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Civil Procedure in the United States

Federal courts of the United States describe the procedure for taking depositions in Rule 30 of the Federal Rules of Civil Procedure. There are corresponding rules in state courts. If the person's testimony is demanded of a party (deponent), then notice may be given to that person's attorney. If the witness is not a party to the lawsuit (a third party), then a subpoena must be served on him/her if he/she is reluctant to testify. The person to be deposed (questioned) at an examination before trial, known as the deponent, is usually notified to appear at the appropriate time and place by means of a subpoena. To ensure an accurate record of statements made during an examination before trial, a court reporter is present and typically transcribes the witness's deposition on a stenograph. Audio or video recordings of the examination before trial are commonly taken as well. Prior to taking a deposition, the court reporter administers the same oath or affirmation that the deponent would take if the testimony were being given in court in front of a judge and jury. Thereafter, the court reporter makes a verbatim stenographic record of all that is said during the examination before trial, in the same manner that witness testimony is recorded in court. The deposition made during an examination before trial is then published in a booklet, which is provided to the deponent and to any party to the suit, who wishes to purchase a copy.

Attorneys for the deposing litigant are often present, although this is not required in all jurisdictions. The attorney who has ordered the examination before trial begins questioning of the deponent (this is referred to as "direct examination" or "direct" for short). Since nods and gestures cannot be recorded, the witness is instructed to answer all questions aloud. After the direct examination, other attorneys in attendance cross-examine the witness. The first attorney may ask more questions at the end, in re-direct, which may be followed by re-cross.

During the course of the examination before trial, one attorney or another may object to questions asked. In most jurisdictions, only two types of objections are allowed: The first is to assert a privilege and the second is to object to the form of the question asked. Objections to form are frequently used to signal the witness to be careful in answering the question. All other objections, in particular those involving the rules of evidence, are generally preserved until trial. They need not be made at the examination before trial. California is the notable exception; under the Civil Discovery Act as enacted in 1957 and revised in 1986, most objections must be given on the record at the examination before trial (and must be specific as to the objectionable nature of the question or response) or they are permanently waived.[2]

The chief value of obtaining a deposition by examination before trial, as with any discovery proceeding, is to give all litigant parties in a contested case a fair preview of the evidence. The process provides a "level playing field" of information among the litigants and avoids surprises at trial (traditionally regarded as an unfair tactic). Another benefit of taking deposition is to preserve a witness's recollection while it is still fresh, since the trial may still be months or years away. When a witness's testimony in open court is inconsistent with that given at examination before trial, a party can introduce the deposition to impeach (or contradict) the witness. In the event a witness is unavailable for trial, their deposition may be read or played before the jury and made part of the record in the case, with the same legal force as live testimony. In some states, stenographic, audio, or video records of depositions can be offered into evidence even if the witness is available.

Sometimes, after a number of witnesses have been deposed, the parties will have enough information that they can reasonably predict the outcome of a prospective trial, and may decide to arrive at a compromise settlement, thus avoiding trial and preventing additional costs of litigation. Accordingly, while most examinations before trial are not videotaped, opposing counsel may use the opportunity to get an impression of the witness's affect and appearance, because these are telling factors as to how that person will present in front of a jury.

Criminal Procedure in the United States

In the United States, depositions may be taken in criminal cases, for reasons that vary between jurisdictions. In federal criminal cases, Federal Rules of Criminal Procedure Rule 15 governs the taking of depositions. Each state has its own laws which govern the taking of depositions.

Most jurisdictions provide that depositions may be taken to perpetuate the testimony of a witness, that is, preserve their testimony for trial. If the person requested to testify (deponent) is a party to the lawsuit or someone who works for an involved party, notice of time and place of the examination before trial can be given to the other side's attorney, but if the witness is an independent third party, a subpoena must be served on him/her if he/she is recalcitrant. This occurs when a witness may not be able to testify at trial. The deposition of the witness is taken and, if the witness is unable to appear at trial, the deposition may be used to establish the witness' testimony in lieu of the witness actually testifying. Regarding depositions to preserve testimony, the Confrontation Clause of the Sixth Amendment to the United States Constitution establishes a constitutional right of the defendant to be present during the examination before trial and to cross-examine the witness. The defendant may waive this right.

Some jurisdictions provide that depositions may be taken for purposes of discovery. In these jurisdictions, the defendant does not have a constitutional right to be present, although such a right may be established by statute.

A defendant in a criminal case may not be deposed without his consent because of the Fifth Amendment right to not give testimony against oneself.

Other jurisdictions

In Canada, the process is nearly identical but is called the examination for discovery.[3]. In Australia and England, there is no right of oral examination of opposing parties in civil litigation. The discovery process is usually completed after pleadings and requests for particulars by exchange of affidavits of documents and sometimes written questions and answers (interrogatories). Often affidavits are exchanged before trial, but the first opportunity to question the opposing party in most lawsuits is at trial.

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