Q. “Are depositions always helpful in criminal cases?” A. “No,” says Fort Lauderdale criminal defense lawyer John M. Castellano, “and here’s why:”

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I’m a Florida federal criminal lawyer too’ so I can tell you with authority that in Federal Court they don’t allow for “depositions” (A “deposition” is a proceeding — fairly informal,usually in a conference room, with no judge present, but with a court reporter present, as the lawyer questions the witness/”deponent” under oath about the facts of the case, what they observed, their background, etc)

Though it’s true I’m busy as a Florida federal criminal lawyer — where depositions are NOT permitted in federal criminal cases under the federal rules of criminal procedure, it’s also true that I’m more often involved in State cases — wherein depositions ARE, in fact, allowed by the Florida Rules of Criminal Procedure in ANY “felony” case; and by court order, depositions are even allowed in many misdemeanor cases; BUT, these depositions are NOT always necessary or even helpful in criminal cases in Florida:

Forty Six (46) states in the United States don’t allow for depositions in criminal cases, and the same is true for federal court; and for what it is worth, it has been my experience as a Fort Lauderdale criminal defense lawyer and Florida DUI lawyer that depositions are not always helpful or necessary for the defense, especially if an investigator can be used as the alternative to obtain the the sworn testimony of the prospective witnesses (in the form of taped, sworn statements or even affidavits) along with records and other information that may be helpful.

The rules of criminal procedure require that the prosecutor receive notice that the defense is taking the deposition of the officer or any other witness, and the prosecutor then has the right to be present at the deposition and to be heard, to then question the same witness, etc. (This is not the case when we use an investigator to obtain the same information!)

When you go the route of depositions and “noticing” the prosecutor as to the exact date and time and place for the intended deposition, This just naturally allows the prosecutor an advance heads up on where the defense is going with a particular defense, how the defense may be approaching the trial or witness in the future, almost akin to a dry run for the prosecutor. This is too often NOT helpful for the defense, especially when the same witness may be approached through an investigator without the prosecutor sitting there listening, as in the case of a deposition.

There are times when, together with the clients, we will choose to take depositions, despite the reasons otherwise advanced in this blog as to why they are not often helpful, eg, when a victim or civilian witness or officer refuses to speak with the investigator, for example, and yet we need to know more from them as to what they will testify to in trial. Should that be the case, then you as the client – or the client’s family together with the client, hereby agree to pay the costs for the court reporter, the process servers fees, and transcription expenses relating to costs for transcribing the deposition; and to that end, you agree to advance a cost retainer for these purposes, and yet *only in order to pay for these costs *if we agree (later in the case) that this is absolutely necessary. Most likely, this will not be the situation in this case.

Again, more often than not, a deposition only helps the prosecutor — who then learns your defenses and learns more about their own case for the first time; and therefore, it is often ill-advised to proceed with depositions. This is especially true when the defense hopes to make significant progress in working toward an agreement with the State. Common sense dictates that it would be counter productive to fuel an adversarial environment (depositions can be adversarial, obviously, just by their very nature and purpose) when you are simultaneously attempting to curry favor and obtain benevolence from the assigned prosecutor.

There are times when you and your lawyer may choose to work together with the prosecutor to create that spirit of real compromise and genuine accommodation, and in that scenario, the prosecutor will often be more receptive is working out a benevolent sentencing disposition.

If you would like to discuss this legal issue any further — or discuss any issue of criminal defense or representation of you or a loved one, please feel free to call me at the office anytime, @ 954 766 8810. It would be a privilege to help you. I am,

Always there for you and your family or friends,

John Castellano


About the Author:

John M. Castellano is a Fort Lauderdale criminal defense attorney who has helped thousands of clients throughout Florida. While building a reputation as a premiere Fort Lauderdale DUI attorney, Mr. Castellano has worked tirelessly to develop strategies to best protect the rights of those arrested for DUI in Broward, Dade and West Palm. However, Mr. Castellano is not just a drunk driving lawyer. He has been a successful domestic violence attorney, drug trafficking attorney, as well as all other Felony and Misdemeanor cases.

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