29-1917. Deposition of witness or sexual assault victim; when; procedure; use at trial.
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/ne/chapter-29/29-1917A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(1)Except as provided in section 29-1926 , at any time after the filing of an indictment or information in a felony prosecution, the prosecuting attorney or the defendant may request the court to allow the taking of a deposition of any person other than the defendant who may be a witness in the trial of the offense. The court may order the taking of the deposition when it finds the testimony of the witness:
(a)May be material or relevant to the issue to be determined at the trial of the offense; or
(b)May be of assistance to the parties in the preparation of their respective cases.
(2)An order granting the taking of a deposition shall include the time and place for taking such deposition and such other conditions as the court determines to be just.
(3)Except as provided in subsections
(4)and
(5)of this section, the proceedings in taking the deposition of a witness pursuant to this section and returning it to the court shall be governed in all respects as the taking of depositions in civil cases, including section 25-1223 .
(4)(a) If the prosecuting attorney or defendant seeks to question a witness at a deposition under this section regarding evidence admissible under subsection
(2)of section 27-412 or regarding a prior alleged false allegation of sexual assault, such party shall state notice of intent to do so in the motion to depose the witness. Such notice shall not include the name or any identifying information of the witness, nor the grounds upon which the moving party believes such evidence may be relevant and admissible.
(b)If the opposing party objects to questioning described in subdivision (4)(a) of this section, such party shall file a written objection. Such written objection shall not include the name or identifying information of the witness, nor the grounds upon which that party believes the evidence is not relevant or admissible.
(c)Upon the filing of an objection under subdivision (4)(b) of this section, the court shall conduct an in camera hearing regarding such motion. Only the parties shall be permitted to be present at such hearing. The record of such hearing shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without a court order. Such hearing shall be conducted no fewer than seven days before any scheduled deposition in which a party seeks to adduce evidence pursuant to this subsection. At such hearing, the moving party shall state the grounds upon which the moving party believes such evidence may be relevant and admissible.
(d)The court shall allow questioning described in subdivision (4)(a) of this section if the court finds that such testimony could be relevant and admissible at trial.
(5)(a) A sexual assault victim may request to have an advocate of the victim's choosing present during a deposition under this section. The prosecuting attorney shall inform the victim that the victim may make such request as soon as reasonably practicable prior to the deposition. If the victim wishes to have an advocate present, the victim shall, if reasonably practicable, inform the prosecuting attorney if an advocate will be present, and, if known, the advocate's identity and contact information. If so informed by the victim, the prosecuting attorney shall notify the defendant as soon as reasonably practicable.
(b)An advocate present at a deposition under this section shall not interfere with the deposition or provide legal advice.
(c)For purposes of this subsection, the terms sexual assault victim, victim, and advocate have the same meanings as in section 29-4309 .
(6)A deposition taken pursuant to this section may be used at the trial by any party solely for the purpose of contradicting or impeaching the testimony of the deponent as a witness.
A district court's order authorizing a second deposition of a State witness who refused to answer questions during the first deposition was a sufficient remedy for noncompliance with discovery, where the authorization occurred approximately 4 months before trial was to begin. State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).
There is no obligation for the State to produce the victim or assist in locating the victim for purposes of a pretrial deposition by defense counsel. State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020).
Subsection
(4)of this section restricts the use of a criminal deposition only at the trial rather than at any trial. In other words, it restricts the deposition's use at the criminal trial for which the deposition was taken, and not in a separate civil action. Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).
The plain language of this section, by using the term "may," indicates that the granting of a deposition is within the trial court's discretion. A defendant is not entitled, as a matter of right, to a deposition under this section. State v. Collins, 283 Neb. 854, 812 N.W.2d 285 (2012).
This statute governs the appropriate use of discovery depositions in a criminal case when the deponent is available as a testifying witness. State v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999).
A motion for depositions must be filed by a defendant after the information is filed. State v. Murphy, 255 Neb. 797, 587 N.W.2d 384 (1998).
Subsection
(4)of this section governs only the appropriate use of a discovery deposition when the deponent is an available, testifying witness. State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997).
Defendant is not entitled, as a matter of right, to a deposition pursuant to subsection
(1)of this section. State v. Tuttle, 238 Neb. 827, 472 N.W.2d 712 (1991).