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Rule 35 – Depositions to Perpetuate Testimony

May 13, 2021 | Criminal Procedure, Massachusetts

(Applicable to District Court and Superior Court)

(a) General Applicability. Whenever due to exceptional circumstances, and after a showing of materiality and relevance, it is deemed to be in the interest of justice that the testimony of a prospective witness of the defendant or the Commonwealth be taken and preserved, the judge may at any time after the filing of a complaint or return of an indictment, upon his own motion or the motion of either party with notice to all interested persons, order that the testimony of the witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the judge may direct that his deposition be taken. A copy of a deposition ordered upon the judge’s own motion shall be transmitted to the court by the person administering the deposition. In determining a motion filed pursuant to this rule, the judge may order a hearing or may determine whether exceptional circumstances exist and the materiality and relevance of the testimony on the basis of the supporting affidavit.
(b) Summonses. An order to take a deposition shall authorize the issuance by the clerk of summonses pursuant to rule 17 for the persons and objects named or described in such order. A witness whose deposition is to be taken may be required to attend at any place designated by the trial court, taking into account the convenience of the witness and the parties.
(c) Notice of Taking of Deposition. The party on whose motion a deposition is to be taken shall give all interested persons reasonable written notice of the time and place for the taking of the deposition. If a defendant is in custody, the officer having custody of the defendant shall be notified by the court of the time and place set for the taking of the deposition and shall produce the defendant at that time and place and keep him in the presence of the witness during the taking of the deposition. A defendant not in custody shall have the right to be present at the taking of a deposition, but his failure to appear after notice and without cause shall constitute a waiver of the right to be present and of all objections based upon that right.
(d) Payment of Expenses. Whenever a deposition is taken upon the motion of the Commonwealth, the court shall direct that the reasonable expenses of travel and subsistence of the defendant and his counsel and the witness be paid for by the Commonwealth. Expenses for a deposition taken upon motion of a defendant may be assessed to the defendant to be paid forthwith or in such other manner as the judge may determine.
(e) Scope of Examination. Subject to such additional conditions as the judge may specify and except as otherwise provided in these rules, the taking of depositions in criminal cases shall be in the manner provided for in civil actions. The scope and manner of such examination and cross-examination at the taking of the deposition shall be such as would be allowed in the trial itself.
(f) Objections to Deposition Testimony. Objections to deposition testimony or evidence or parts of thereof and the grounds for the objections shall be stated at the time of the taking of the deposition.
(g) Admissibility. At a trial or upon any hearing, a part or all of a deposition, so far as it is otherwise admissible under the law of evidence, may be used as substantive evidence if the judge finds that the deponent is unavailable or if the deponent gives testimony at the trial or hearing which is inconsistent with his deposition. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. “Unavailable” as a witness includes situations in which the deponent:

(1) is exempt by a ruling of the judge on the ground of privilege from testifying concerning the subject matter of his deposition;
(2) persists in refusing to testify concerning the subject matter of his deposition despite an order of the judge to do so;
(3) lacks memory of the subject matter of his deposition;
(4) is unable to be present or to testify at the trial or hearing because of death or physical or mental illness or infirmity;
(5) is absent from the trial or hearing and the proponent of the deposition has been unable to procure the deponent’s attendance by process or other reasonable means; or
(6) is absent from trial or hearing and his testimony was ordered taken and preserved pursuant to rule 6(d)(2).

A deponent is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his deposition for the purpose of preventing the deponent from attending or testifying.

(h) Notice.

(1) District Court. All interested parties shall be given reasonable notice by the clerk of the time set for hearing motions filed under this rule.
(2) Superior Court. The moving party shall notify all interested parties of the time set for hearing motions filed under this rule at least seven days prior to the hearing.
(i) Deposition by Agreement Not Precluded. Nothing in this rule shall preclude the taking of a deposition, orally or upon written questions, by agreement of the parties with the consent of the judge.

Mass. R. Crim. P. 35