Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Criminal Rule 15 -- Deposition

State v. Evans, 153 Ohio App. 3d 226, 2003-Ohio-3475, ¶ 18-26 -- A defendant in custody has the right to be brought to a deposition, but may waive that right in writing. A defendant not in custody has the right to notice and to be present, but may waive the right to attend by simply not showing up.

State v. Smith (2000), 87 Ohio St. 3d 424, 430-432 -- Deposition of a missing out of state witness was properly admitted where defense counsel participated at the time it was taken and the state demonstrated continued efforts to secure live testimony by the witness.
State v. Austin (1998), 131 Ohio App. 3d 329, 338-339 -- Use of depositions was proper where the court found out of state witnesses were not subject to the court's subpoena power, and both the defendant and his attorney attended the deposition in the other state.
State v. Daniel (1994), 97 Ohio App. 3d 548, 561-562 -- No abuse of discretion found in refusing to allow defense to depose victims and other witnesses who refused to speak with defense investigators.
State v. Rowe (1993), 92 Ohio App. 3d 652 -- Deposition of elderly witness was admitted in violation of the defendant's right to confrontation, the state having failed to establish that the witness was unavailable within the meaning of Evid. R. 804(A). Affidavit from physician was unsworn and not sufficiently specific as to nature of ailments, prosecutor had not spoken with the witness during the year since the deposition was taken, and the defense claimed the witness was in fact able to shop and socialize.
State v. Zeh (1987), 31 Ohio St. 3d 99 -- Paragraph one of the syllabus: "Generally, a prospective witness for the state has the right to refuse an extra-judicial, pre-trial interview, deposition, or examination by an agent of the defendant." (Actual objective was a mental examination. Opinion repeats general rule that prosecutor may not obstruct access to the witness.)
State v. Gettys (1976), 49 Ohio App. 3d 241, 247-249 -- Local court rule providing for cases to be tried by playing videotaped deposition for the jury instead of presenting live testimony was a denial of confrontation.
State v. Wilkinson (1980), 64 Ohio St. 2d 308 -- Paragraph one of the syllabus: "A defendant's rights to confrontation and cross examination of witnesses apply in the taking of a videotaped deposition to be used against the defendant in a criminal trial." Right denied when insufficient notice to defense of second and supplemental deposition of witness suffering a fatal illness prevented attendance when deposition was taken. Witness lived more than two months after deposition was taken.
State v. Self (1990), 56 Ohio St. 3d 73 -- Paragraph one of the syllabus: "The use, in accord with R.C. 2907.41(A) and (B), of a child sexual abuse victim's videotaped deposition at trial in place of live testimony does not violate a defendant's right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. (Maryland v. Craig [1990], 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666, applied and followed; Coy v. Iowa [1988], 487 U.S. 1012, and State v. Eastham [1988], 39 Ohio St. 3d 307, 530 N.E. 2d 409, distinguished."
State v. Villagomez (1974), 44 Ohio App. 2d 209 -- Criminal Rule 15(F) does not require notice of intent to use a deposition as does Civil Rule 32(A).

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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