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Daily Journal - Feb 25, 2005
Criminal Defendants Should Be Allowed to Depose Witnesses

Forum Column

By Dana Cephas


        When a civil plaintiff sues a business partner to take the partner's money, the civil defendant can depose the plaintiff's witnesses to prepare for trial. But if California or federal authorities prosecute the same business partner to take the partner's freedom, the criminal defendant will not be allowed to depose the government's witnesses and, thus, may have no idea what those witnesses plan to say at trial.
        This general prohibition on criminal depositions has almost certainly led to wrongful convictions, with juries misled (or even lied to) by prosecutors' witnesses. For example, dozens of innocent men who were found guilty by juries have had convictions overturned after DNA tests proved someone else committed the crimes.
        The conviction of so many innocent people might have been avoided if the prosecutors' witnesses were deposed. If depositions were permitted, false or misleading testimony might have been revealed - in advance of trial - and more effective defenses could have been prepared.
        Because pretrial depositions of prosecution witnesses is not allowed, defense attorneys are often unable to prepare an effective defense because they will not know what needs to be investigated for cross-examination purposes; thus, they may be unable to expose last-minute lying witnesses. This is a problem for all defendants, but especially so for those who are innocent.
        A defendant who is truly guilty (present for the crime, for example, or involved in conspiracy discussions) would be able to anticipate what the prosecutor's witnesses will say at trial. This guilty defendant would be able to assist his attorney in preparing effective cross-examinations and an effective trial strategy.
        In contrast, innocent defendants would have less ability to assist their attorneys because these defendants were not at the crime scene and/or were not involved in the conspiracy. These innocent defendants may have no idea what the prosecution witnesses will say at trial.
        Considering that fact that innocent defendants are more likely to be ambushed with surprise testimony during trial, our justice system provides insufficient checks and balances - especially for those defendants portrayed in the news media as guilty long before trial gets under way.
        Consider the federal criminal prosecution of Kenneth Lay, the former CEO of Enron. The indictment claims Lay and other defendants engaged in a scheme to manipulate "Enron's publicly reported financial results."
        If Lay is guilty (and if he conspired with government witnesses, including those who have already pleaded guilty), he can help his defense team prepare for trial because he knows what testimony to anticipate. If he is guilty, he will know where the bodies are buried.
        But Lay might be innocent of any criminal wrongdoing. His only error may have been his failure to pay more attention to what Andrew Fastow (Enron's former chief financial officer) and other Enron employees were doing. If so, Lay's defense team will have to wait until trial to learn whether Fastow or other witnesses will testify that Lay knew about the scheme to hide company losses.
        Allowing Lay's attorneys to depose prosecution witnesses might enable his defense team to uncover evidence proving the witnesses are mistaken, or actually lying for their own benefit - for example, to minimize their own punishment or get a six-figure book deal.
        Lay could have deposed many of the prosecution witnesses in a related civil case, because he was sued by the Securities and Exchange Commission prior to his arrest. However, federal prosecutors quickly intervened in the SEC's case and asked that judge for an order staying the SEC's civil action until after the criminal case was completed.
        The district court's order granting the stay explained that "the much broader rules of civil discovery might well obstruct and impair the government's criminal prosecution" whereas "a stay would serve the public interest in law enforcement."
        As a result of the stay, federal prosecutors will better be able to keep Lay's defense team in the dark right up until trial. But how does hiding the truth until the day of trial serve the so-called public interest? And why would justice be obstructed if a defendant had access to the evidence that would be used against him or her at trial?
        A criminal trial should be a search for truth. Depositions would assist that search and help reduce the number of people wrongfully convicted because, as any civil litigator knows, it is much more difficult cross-examine a lying witness who was not deposed.
        One of the first things a criminal defense attorney learns is to avoid asking questions to which the answers are unknown. Thus, cross-examinations by defense attorneys in criminal cases are much more limited than in civil cases in which witnesses usually have been deposed.
        These more limited cross-examinations cause additional harm in criminal cases because very few, if any, nonlawyers know that criminal defendants are not allowed to depose witnesses. Thus, most jurors probably assume that defense attorneys conducted depositions, that they knew what the government's witnesses would say and that they still had no way to impeach those witnesses.
        If jurors knew that defendants had no opportunity to depose witnesses prior to trial, those jurors might not put as much reliance on the witnesses' testimony. Moreover, the jurors might not be as concerned about a defendant's apparent inability to impeach that testimony.
        Until criminal defense attorneys are permitted to conduct depositions, defendants will have to rely on prosecutors to look for (and produce evidence of) ways to impeach the prosecutors' own witnesses.
        This forced reliance on prosecutors is contrary to the idea of an adversarial system and inconsistent with due process. Prosecutors have no motivation to double-check every fact from their witnesses. Only a defense attorney would do that.
        And because prosecutors tenaciously limit pretrial dissemination of witness testimony (for example, by not recording witness interviews that would have to be produced prior to trial), defendants will continue to be surprised by trial testimony that is false or misleading.
        In order to be fair, if the system continues to prevent defense attorneys from taking depositions, then jurors - who may have prior service in civil trials - should be informed of the significant shortcomings in discovery provided to criminal defendants.
        A handful of states, including Florida, Iowa and Missouri, recognize the difficulty of mounting an effective defense with inadequate pretrial discovery. These states allow criminal defendants to depose prosecution witnesses using the same rules governing civil depositions.
        However, the list of jurisdictions permitting depositions in criminal cases is unlikely to grow much longer, because politicians today fear being labeled "soft" on crime. Any state or federal legislator who argues that criminal defendants need additional discovery rights will probably be looking for a new job after the next election.
        Fortunately, when the Constitution was drafted, federal judges were given lifetime tenure so they could make unpopular decisions without fearing for their jobs. Thus, defense attorneys should assert due process and confrontation clause challenges in the federal court system until the judges permit the discovery required for the effective exercise of a defendant's confrontation clause rights.
        Almost anyone can be convicted of a crime if his or her attorneys do not know what the prosecutors' witnesses will say at trial. Take, once again, for example, those individuals who were wrongly imprisoned until their exoneration by DNA evidence. We must keep in mind that many convictions (cases of fraud, for example) are not based on acts that DNA can eventually clear defendants of committing. And the appellate courts offer no relief because such trials are deemed fair.
        When defendants are finally able to depose prosecution witnesses, the so-called crucible of cross-examination will really have some teeth, and fewer innocent defendants will be wrongfully convicted.
        Until then, criminal defense attorneys may want to begin their opening statements by informing jurors that "the judge would not permit me to depose the prosecutor's witnesses, so I have no idea what the government's witnesses are about to say."