Rules of Criminal Procedure

Rules of Criminal Procedure  Criminal Procedure Rule 35: Depositions to perpetuate testimony

Effective Date: 07/01/1979

(Applicable to District Court and Superior Court)

Table of Contents

(a) General applicability

Whenever due to exceptional circumstances, and after a showing of materiality and relevance, it is deemed to be in the interest of justice that the testimony of a prospective witness of the defendant or the Commonwealth be taken and preserved, the judge may at any time after the filing of a complaint or return of an indictment, upon his own motion or the motion of either party with notice to all interested persons, order that the testimony of the witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the judge may direct that his deposition be taken. A copy of a deposition ordered upon the judge's own motion shall be transmitted to the court by the person administering the deposition. In determining a motion filed pursuant to this rule, the judge may order a hearing or may determine whether exceptional circumstances exist and the materiality and relevance of the testimony on the basis of the supporting affidavit.

(b) Summonses

An order to take a deposition shall authorize the issuance by the clerk of summonses pursuant to rule 17 for the persons and objects named or described in such order. A witness whose deposition is to be taken may be required to attend at any place designated by the trial court, taking into account the convenience of the witness and the parties.

(c) Notice of taking of deposition

The party on whose motion a deposition is to be taken shall give all interested persons reasonable written notice of the time and place for the taking of the deposition. If a defendant is in custody, the officer having custody of the defendant shall be notified by the court of the time and place set for the taking of the deposition and shall produce the defendant at that time and place and keep him in the presence of the witness during the taking of the deposition. A defendant not in custody shall have the right to be present at the taking of a deposition, but his failure to appear after notice and without cause shall constitute a waiver of the right to be present and of all objections based upon that right.

(d) Payment of expenses

Whenever a deposition is taken upon the motion of the Commonwealth, the court shall direct that the reasonable expenses of travel and subsistence of the defendant and his counsel and the witness be paid for by the Commonwealth. Expenses for a deposition taken upon motion of a defendant may be assessed to the defendant to be paid forthwith or in such other manner as the judge may determine.

(e) Scope of examination

Subject to such additional conditions as the judge may specify and except as otherwise provided in these rules, the taking of depositions in criminal cases shall be in the manner provided for in civil actions. The scope and manner of such examination and cross-examination at the taking of the deposition shall be such as would be allowed in the trial itself.

(f) Objections to deposition testimony

Objections to deposition testimony or evidence or parts of thereof and the grounds for the objections shall be stated at the time of the taking of the deposition.

(g) Admissibility

At a trial or upon any hearing, a part or all of a deposition, so far as it is otherwise admissible under the law of evidence, may be used as substantive evidence if the judge finds that the deponent is unavailable or if the deponent gives testimony at the trial or hearing which is inconsistent with his deposition. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. "Unavailable" as a witness includes situations in which the deponent:

(1) is exempt by a ruling of the judge on the ground of privilege from testifying concerning the subject matter of his deposition;

(2) persists in refusing to testify concerning the subject matter of his deposition despite an order of the judge to do so;

(3) lacks memory of the subject matter of his deposition;

(4) is unable to be present or to testify at the trial or hearing because of death or physical or mental illness or infirmity;

(5) is absent from the trial or hearing and the proponent of the deposition has been unable to procure the deponent's attendance by process or other reasonable means; or

(6) is absent from trial or hearing and his testimony was ordered taken and preserved pursuant to rule 6(d)(2).

A deponent is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his deposition for the purpose of preventing the deponent from attending or testifying.

(h) Notice

(1) District Court

All interested parties shall be given reasonable notice by the clerk of the time set for hearing motions filed under this rule.

(2) Superior Court

The moving party shall notify all interested parties of the time set for hearing motions filed under this rule at least seven days prior to the hearing.

(i) Deposition by agreement not precluded

Nothing in this rule shall preclude the taking of a deposition, orally or upon written questions, by agreement of the parties with the consent of the judge.

Reporter's notes

This rule was written in substantial conformity with 18 U.S.C. § 3503 (1970) and is to be governed by the provisions of Mass.R.Crim.P. 13 wherever the two rules are not inconsistent. See Rules of Criminal Procedure (U.L.A.) rules 431-32 (1974), Fed.R.Crim.P. 15. 

Previous comparable statutory law in the Commonwealth concerning the taking of depositions in criminal proceedings was General Laws c. 277, § 76 (Rev.St. [1836] 136, § 32) which provided that:

[Where] an issue of fact is joined upon an indictment, the court may, upon application of the defendant, grant a commission to examine any material witnesses residing out of the commonwealth, in the same manner as in civil causes; and the prosecuting officer may join in such commission and may name any material witnesses to be examined on the part of the commonwealth. 

Section 77 of that same chapter (Rev.St. [1836] c. 136, § 33) provided: 

When such commission is issued ... and the depositions taken thereon ... [are] returned, [they] shall be read in the same manner and with the like effect ... subject to the same exceptions, as in civil cases; but if the defendant on his trial declines to use the deposition so taken, the prosecuting officer shall not, without the defendant’s consent, make use of any deposition taken on behalf of the commonwealth. 

Although these statutes provide a basis for this rule, they are superseded by it. The statement that depositions are to be conducted and used “as in civil causes” formerly operated to incorporate by reference G.L. c. 233, §§ 46-63 and Superior Court Rule 37 (1954). This rule is to govern the taking of depositions in criminal cases, but should reference to civil practice be necessary it shall be to Mass.R.Civ.P. 27 and to Superior Court Rules 71-72 (1974), insofar as they are consistent with this rule. See SUPERIOR COURT RULES, 1974, ANNOTATED 297-309 (Mass.Bar Ed.1975). 

Subdivision (a)

This rule has adopted the approach set out in the Federal Rules: A request to take a deposition in a criminal case will be granted only in exceptional situations. United States v. Whiting , 308 F.2d 537 (2d Cir.1962). This is because criminal depositions are not for the discovery of information; rather they are intended to preserve evidence. United States v. Steffes, 35 F.R.D. 24 (1964). 

While it is true that it is far more desirable to secure the actual presence of a potential witness in criminal cases, there are situations in which the use of depositions is required in order to assure that the ends of justice are met, e.g., when a witness’ attendance cannot be secured because of sickness or infirmity. (See subdivision [g][4], infra). Or, notwithstanding the provisions of G.L. c. 233, § 13A and c. 277, § 66 , the right of a defendant to compulsory process for witnesses who are necessary to his defense does not automatically extend beyond the territory of the Commonwealth. Commonwealth v. Dirring , 354 Mass. 523 (1968). Accord Commonwealth v. Watkins , 375 Mass. 472 (1978). See subdivision (g)(5), infra. 

The Supreme Judicial Court in Smith v. Commonwealth , 331 Mass. 585 (1954), specifically mentioned the availability of depositions in criminal cases. In Smith, a convicted defendant petitioned for a writ of error alleging that his alibi defense which was supported by affidavits and letters had not received sufficient recognition during the prosecution of his case. The court said that where the defendant’s material allegations could have been supported by the testimony of known people residing out of state, the deposition procedure detailed in G.L. c. 277, §§ 76-77 could have been used advantageously. It is in such a case that the procedures detailed in this rule should be used. 

Another set of exceptional circumstances warranting the taking of a deposition was established by statute. Former General Laws c. 276, § 50 (St.1851, c. 71) provided that the deposition of a witness unable to provide sufficient sureties guaranteeing his appearance in court could be taken upon order of the court with the consent of the defendant. This subdivision does not require the defendant’s consent when the court finds that exceptional circumstances justify an order that a witness’ deposition be taken. 

Subdivision (b)

This subdivision conforms to Fed.R.Crim.P. 17(f) in explicitly empowering the clerk of the court to issue compulsory process in order to effect the taking of a deposition. It should be noted that it authorizes orders to produce documents, objects, etc., at the taking of the deposition as well. Summonses are treated in full under Mass.R.Crim.P. 17

Subdivision (c)

Whenever a defendant is incarcerated, the moving party is responsible for insuring that the defendant has the opportunity to be present while the deponent is being examined. This can be accomplished in either of two ways: by designating the detention facility where the defendant is incarcerated as the place where the deposition is to be taken, or by authorizing the defendant’s temporary release for the purpose of attending the examination. The second alternative would require the issuance of a writ of habeas corpus or other similar judicial order. 

A defendant not in custody has the responsibility of attending the taking of a deposition unless he has cause for not attending. Insufficient notice and not having been tendered expenses are examples of sufficient cause for non-attendance. By implication, the failure to attend after sufficient notice and tendering of expenses constitutes a waiver of the right to be present unless other cause is shown. Where the defendant has established cause for non-attendance, the deposition should not be used over his objection. 

Subdivision (d)

The provision in this subdivision authorizing payment from public funds is supported by G.L. c. 12, § 24 (as amended, St.1978, c. 478, § 10), which authorizes district attorneys to expend state monies for the necessary costs of prosecuting a case. 

Subdivision (e)

This subdivision conforms substantially to Fed.R.Crim.P. 15(d), although the Massachusetts rule makes no provision for discovery, a subject which is covered in depth by Mass.R.Crim.P. 14. For deposition practice in civil actions, see Mass.R.Civ.P. 27

Subdivision (f)

It is intended that objections to testimony and the grounds therefor are to be stated at the taking of the deposition, consistent with civil practice under Superior Court Rule 71 (1974). See SUPERIOR COURT RULES, 1974, ANNOTATED 302-03 (Mass.Bar Ed.1975). The requirement that objections be stated at the taking of a deposition accords with Fed.R.Crim.P. 15(f).

Subdivision (g)

For all or part of a deposition to be admissible as evidence, the deponent must be unavailable as that term is defined in this subdivision. Prior to the promulgation of this rule, there was no statute or rule which defined “unavailability” in the present context. Commonwealth v. DiPietro , 373 Mass. 369, (1977). Further, the deposition must be otherwise admissible within the law of evidence, i.e., the former testimony exception to the hearsay rule. See Fed.R.Evid. 804(b)(1); Commonwealth v. McLaughlin , 364 Mass. 211, 219-23 (1973); Commonwealth v. DiPietro, supra, at 1984-92 (collecting cases), Commonwealth v. Canon , 373 Mass. 494 (1977). 

As with other manifestations of the sixth amendment right to confrontation, the significant feature is whether the party against whom the deposition is offered had through counsel an adequate opportunity for cross-examination of the deponent. Pointer v. Texas , 380 U.S. 400, 406-07 (1965). Accord Commonwealth v. Canon, supra; Commonwealth v. DiPietro , 4 Mass.App. 845, (1976), aff’d, 373 Mass. 369 (1977); Commonwealth v. Caine , 366 Mass. 366, 371-72 (1974); Commonwealth v. Clark , 363 Mass. 467 (1973); Commonwealth v. Mustone , 353 Mass. 490, 498 (1968). Actual cross-examination is not required, the constitutional requirement is satisfied if the party against whom the deposition is offered was afforded an adequate opportunity to cross-examine. Pointer v. Texas, supra; Commonwealth v. Canon, supra; Commonwealth v. DiPietro, supra; In re Andrews , 368 Mass. 468 (1975). That opportunity is to be afforded pursuant to subdivision (e), infra, under which the scope and manner of cross-examination is to be such as allowed in trials. 

A deposition otherwise admissible may be introduced as substantive evidence of the matters contained therein if the deponent is unavailable. Any deposition may be used to impeach in accord with established rules of evidence. 

Subdivisions (g)(1)-(g)(5) are essentially restatements of Fed.R.Evid. 804(a)(1)-(5). Subdivision (g)(6) is included to make this rule consistent with Mass.R.Crim.P. 6(d)(2)

Subdivision (g)(1) is consistent with Commonwealth v. Canon , 373 Mass. 494, 368 N.E.2d 1181 (1977) (witness invoked fifth amendment privilege against self-incrimination) and Commonwealth v. DiPietro , 373 Mass. 369, 367 N.E.2d 811 (1977) (witness invoked marital privilege). The DiPietro court properly distinguished between the unavailability of a witness and the unavailability of the testimony of that witness: 

“[T]he important element is whether the testimony of the witness is sought and is available and not whether the witness’s body is available.” The physical presence without the testimony contributes nothing to the later trial. 

373 Mass. at -- (1977), quoting Mason v. United States , 408 F.2d 903, 906 (10th Cir.1969), cert. denied 400 U.S. 993 (1971). 

Subdivisions (g)(2) and (3) are also concerned with the situation where the witness is present, but unable or unwilling to testify. 

As to a deceased or incapacitated witness, subdivision (g)(4), see e.g., Commonwealth v. Richards , 35 Mass. (18 Pick.) 434 (1837); Temple v. Phelps , 193 Mass. 297 (1906). 

For “unavailability” in terms of the witness who cannot be found or is not amenable to process, see e.g., Commonwealth v. Gallo , 275 Mass. 320, 324 (1931).

Mass.R.Crim.P. 6(d)(2) authorizes the court to order that the testimony of a witness present in court upon the default of a defendant be taken and preserved, and Mass.R.Crim.P. 10(c) permits the court to condition a continuance upon the taking of and preservation of the testimony of witnesses then present. It is presumed under the former that if a deposition of a witness then present in court is ordered upon the default of a defendant, defendant’s counsel is present in court so as to protect the right of the defendant to confront his accusers under the sixth amendment and Pointer v. Texas, supra. The voluntary absence of a defendant from trial operates as a waiver of his sixth amendment right to confrontation. Taylor v. United States , 414 U.S. 17 (1973); Commonwealth v. Flemmi , 360 Mass. 693 (1971). See also Illinois v. Allen , 397 U.S. 337, 342-43 (1970); Commonwealth v. Snyder , 282 Mass. 401 (1933), aff’d sub nom., Snyder v. Massachusetts , 291 U.S. 97, 105-06 (1934). There is evident a clear analogy between the situation where the defendant voluntarily absents himself from trial and that contemplated by Mass.R.Crim.P. 6(d)(2) where the defendant is found in default. 

The summons which is issued pursuant to Mass.R.Crim.P. 6(b)(2) is formulated to give the defendant adequate notice that his willful default may result in the taking of depositions so as to avoid the sixth amendment confrontation issues raised in Taylor v. United States, supra. 

Subdivision (h)

This subdivision, generally governing notice, is supplemental to Mass.R.Crim.P. 32

Subdivision (i)

Drawn from Fed.R.Crim.P. 15(g), this subdivision recognizes that the parties may find it to their joint advantage to preserve testimony by deposition, or to utilize a deposition at trial, and permits them to do so without having to call upon the court for authorization. If depositions are contemplated, that fact is appropriate for discussion at the pretrial conference. Mass.R.Crim.P. 11(a), (b), Reporter’s Notes, supra.

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