Crim. P. 15

History

Source: Entire rule amended and adopted May 25, 2006, effective July 1, 2006; (d) and (f) amended and effective September 6, 2018. Cross references: For video tape depositions in specific circumstances, see § 18-3-413 (children who are victims of sexual offenses), C.R.S., § 18-6-401.3 (victims of child abuse), and 18-6.5-103.5 (victims or witnesses who are at-risk adults). ANNOTATION Law reviews. For article, ‘‘Hearsay in Crimi- nal Cases Under the Colorado Rules of Evi- dence: An Overview’’, see 50 U. Colo. L. Rev. 277 (1979). This rule limits taking of depositions in a criminal proceeding to those situations where the prospective witness ‘‘may be unable to at- tend a trial or hearing’’. Bresnahan v. District Court, 164 Colo. 263, 434 P.2d 419 (1967). Primary purpose of section (e) is to safe- guard the confrontation rights of the criminally accused by limiting the use of deposition testi- mony to narrowly defined situations of unavail- ability. People ex rel. Faulk v. District Court, 667 P.2d 1384 (Colo. 1983). Trial court has great discretion in deter- mining whether to allow the taking of deposi- tion testimony under this rule. People v. Her- nandez, 899 P.2d 297 (Colo. App. 1995). A Colorado court does not have authority under this rule to order a deposition of a person outside of its jurisdiction. Trial court was in error in granting a motion to depose a witness residing in Mexico. The rule specifi- cally provides that the deposition must be taken in the court’s presence. It also logically follows that, since the rule requires the court to sub- poena the witness who is to be deposed, the court may not order a deposition of any person who may not be legally served a subpoena. The provisions of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, which extends a court’s jurisdiction to persons in other states, applies only within the United States and only to other states that have enacted the same law. Thus, in ordering the deposition of a person in Mexico, the district court was proceeding with- out jurisdiction. People v. Arellano-Avila, 20 P.3d 1191 (Colo. 2001). This rule does not allow taking of deposi- tions for purely discovery purposes, be it in- state or out-of-state. Bresnahan v. District Court, 164 Colo. 263, 434 P.2d 419 (1967). ‘‘Unavailability’’ determined at time of trial. Unavailability within the context of sec- tion (e) is to be determined at the time of trial in light of the circumstances then existing. The mere granting of a pretrial motion to depose a witness accords no presumption of unavailabil- ity at the time of trial. People ex rel. Faulk v. District Court, 667 P.2d 1384 (Colo. 1983); People v. Hernandez, 899 P.2d 297 (Colo. App. 1995). Showing required before deposition admit- ted. Before a deposition is admitted into evi- dence, the proponent of the deposition must make some showing, by evidence or stipulation, that the witness’s inability to testify at trial is due to sickness or infirmity. Mere inconve- nience or passing discomfort does not satisfy the unambiguous provisions of the rule. People ex rel. Faulk v. District Court, 667 P.2d 1384 (Colo. 1983). Affidavit not essential to motion. The pur- pose of the affidavit requirement in section (a) is to ensure that the court has sufficient infor- mation to decide the merits of the motion, i.e., whether a witness might be unable to attend the trial. Where the court is thoroughly informed of the facts supporting the motion by other means, and defendant does not dispute these assertions, the lack of an affidavit is not fatal. People v. Hernandez, 899 P.2d 297 (Colo. App. 1995). Lack of finding of unavailability may not constitute deprivation of rights. Where pros- ecution uses depositions of witnesses at trial, and the defendant was present with counsel and granted full rights of cross-examination at the time of the taking of the depositions before a judge, the defendant is not deprived of his right to confront the witnesses at the trial where the depositions are used without a finding of un- availability of the deponents when it is a matter of his counsel’s trial strategy. Morse v. People, 180 Colo. 49, 501 P.2d 1328 (1972). Applied in People v. Mann, 646 P.2d 352 (Colo. 1982).