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Rule 15 – Deposition

May 14, 2021 | Criminal Procedure, Ohio

(A) When taken. If it appears probable that a prospective witness will be unable to attend or will be prevented from attending a trial or hearing, and if it further appears that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment, information, or complaint shall upon motion of the defense attorney or the prosecuting attorney and notice to all the parties, order that his testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place.

If a witness is committed for failure to give bail or to appear to testify at a trial or hearing, the court on written motion of the witness and notice to the parties, may direct that his deposition be taken. After the deposition is completed, the court may discharge the witness.

(B) Notice of taking. The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time or fix the place of deposition.
(C) Attendance of defendant. The defendant shall have the right to attend the deposition. If he is confined the person having custody of the defendant shall be ordered by the court to take him to the deposition. The defendant may waive his right to attend the deposition, provided he does so in writing and in open court, is represented by counsel, and is fully advised of his right to attend by the court at a recorded proceeding.
(D) Counsel. Where a defendant is without counsel the court shall advise him of his right to counsel and assign counsel to represent him unless the defendant waives counsel or is able to obtain counsel. If it appears that a defendant at whose instance a deposition is to be taken cannot bear the expense thereof, the court may direct that all deposition expenses, including but not limited to travel and subsistence of the defendant’s attorney for attendance at such examination together with a reasonable attorney fee, in addition to the compensation allowed for defending the defendant, and the expenses of the prosecuting attorney in the taking of such deposition, shall be paid out of public funds upon the certificate of the court making such order. Waiver of counsel shall be as prescribed in Rule 44(C).
(E) How taken. Depositions shall be taken in the manner provided in civil cases. The prosecution and defense shall have the right, as at trial, to full examination of witnesses. A deposition taken under this rule shall be filed in the court in which the action is pending.
(F) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if the witness is unavailable, as defined in Rule 804(A) of the Ohio Rules of Evidence. Any deposition may also be used by any party for the purpose of refreshing the recollection, or contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, any party may offer other parts.
(G) Objections to admissibility. Objections to receiving in evidence a deposition or a part thereof shall be made as provided in civil actions.

Ohio. Crim. R. 15

Effective:July 1, 1973; amended effective July 1, 2012.

Staff Note (July 1, 2012 Amendment)

Prior to amendment, Crim.R. 15(F) authorized the use of a deposition at trial in specified circumstances. In some cases, Crim.R. 15(F) purported to authorize uses that violated the confrontation clause of the Sixth Amendment to the U.S. Constitution. See, e.g., Earhart v. Konteh (6th Cir. 2001), 269 F.3d 629. The amendment seeks to eliminate that problem by permitting the use of a deposition only when the witness is unavailable as defined in Evid.R. 804(A).