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Rule 4-261 – Depositions

May 13, 2021 | Criminal Prodcedure, Maryland

(a) Availability. The parties may agree, without an order of court, to take a deposition of a witness, subject to the right of the witness to move for a protective order under section (f) of this Rule. Without agreement, the court, on motion of a party, may order that the testimony of a witness be taken by deposition if the court is satisfied that the witness may be unable to attend a trial or hearing, that the testimony may be material, and that the taking of the deposition is necessary to prevent a failure of justice.
(b) Contents of Order for Deposition. An order for a deposition shall state the name and address of each witness to be examined and the time, date, and place of examination. It shall also designate any documents, recordings, photographs, or other tangible things, not privileged, that are to be produced at the time of the deposition. An order for a deposition shall include such other matters as the court may order, including any applicable provision of section (f) of this Rule.
(c) Subpoena. Upon entry by the court of an order for a deposition or upon request pursuant to stipulation entered into under section (a) of this Rule, the clerk of the court shall issue a subpoena commanding the witness to appear at the time, date, and place designated and to produce at the deposition any documents, recordings, photographs, or other tangible things designated in the order of court or in the stipulation.
(d) How Taken. The procedure for taking a deposition shall be as provided by Rules 2-401(f), 2-414, 2-415, 2-416, and 2-417(b) and (c).
(e) Presence of the Defendant. The defendant is entitled to be present at the taking of a deposition unless the right is waived. The county in which the action originated shall pay reasonable expenses of travel and subsistence of the defendant and defendant’s counsel at a deposition taken at the instance of the State.
(f) Protective Order. On motion of a party or of the witness and for good cause shown, the court may enter any order that justice requires to protect the party or witness from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) That the deposition not be taken;
(2) That the deposition be taken only at some designated time or place, or before a judge or some other designated officer;
(3) That certain matters not be inquired into or that the scope of the examination be limited to certain matters;
(4) That the examination be held with no one present except parties to the action and their counsel;
(5) That the deposition, after being sealed, be opened only by order of the court; or
(6) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.
(g) Use.

(1)Substantive Evidence. At a hearing or trial, all or part of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the court finds that the witness:

(A) is dead, or
(B) is unable to attend or testify because of age, mental incapacity, sickness, or infirmity, or
(C) is present but refuses to testify and cannot be compelled to testify, or
(D) is absent from the hearing or trial and that the party offering the deposition has been unable to procure the witness’ attendance by subpoena or other reasonable means, unless the absence was procured by the party offering the deposition.
(2)Impeachment. At a hearing or trial, a deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness to the extent permitted by the rules of evidence.
(3)Partial Use. If only part of a deposition is offered in evidence by a party, an adverse party may require the offering party to introduce at that time any other part that in fairness ought to be considered with the part offered, so far as otherwise admissible under the rules of evidence, and any party may introduce any other part in accordance with this Rule.
(4)Objection to Admissibility. Subject to Rules 2-412(e), 2-415(g) and (j), 2-416(g), and 2-417(c), an objection may be made at the hearing or trial to receiving in evidence all or part of a deposition for any reason that would require the exclusion of the evidence if the witness were then present and testifying.
(h) Joint Defendants. When persons are jointly tried, the court, for good cause shown, may refuse to permit the use at trial of a deposition taken at the instance of one defendant over the objection of any other defendant.

Md. Crim. Causes. 4-261

This Rule is derived as follows:

Section (a) is derived from former Rule 740 a and j.

Section (b) is derived from former Rule 740 c.

Section (c) is derived from former Rule 740 d.

Section (d) is derived from former Rule 740 e.

Section (e) is derived from former Rule 740 f.

Section (f) is derived from former Rule 740 g.

Section (g) is derived from former Rule 740 h.

Section (h) is derived from former Rule 740 i.

Adopted April 6, 1984, eff. July 1, 1984. Amended March 22, 1991, eff. July 1, 1991; Dec. 8, 2003, eff. July 1, 2004; May 8, 2007, eff. July 1, 2007.

HISTORICAL NOTES

2003 Orders

The December 8, 2003, order, in subsec. (h)(4), changed a reference from Rule 2-415(h) to Rule 2-415(j).

2007 Orders

The May 8, 2007, order combined sections (a) and (b); fixed internal cross references; and renumbered (c) through (i) to be (b) through (h). Previously (a) and (b) read:

“(a) Availability in District Court. In District Court a deposition may be taken only with the consent of the State and the defendant and upon order of court.

“(b) Availability in Circuit Court. In a circuit court the parties may agree, without an order of court, to take a deposition of a witness, subject to the right of the witness to move for a protective order under section (g) of this Rule. Without agreement, the court, on motion of a party, may order that the testimony of a witness be taken by deposition if satisfied that the witness may be unable to attend a trial or hearing, that the testimony may be material, and that the taking of the deposition is necessary to prevent a failure of justice.”