Opinion
Case No. C1-05-21, Docket No. 24.
June 30, 2005
ORDER GRANTING DEFENDANT'S MOTION TO TAKE DEPOSITION TO PRESERVE TESTIMONY
Before the Court is the Defendant's "Motion to Take Deposition to Preserve Testimony" filed on June 28, 2005. The Government opposes the motion. See Docket No. 22.
The Defendant seeks authorization from the Court to depose Victor Dugger, a potential witness in the upcoming trial. Rule 15 of the Federal Rules of Criminal Procedure governs the taking of depositions in federal criminal matters and provides as follows:
A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. If the court orders the deposition to be taken, it may also require the deponent to produce at the deposition any designated material that is not privileged, including any book, paper, document, record, recording, or data.
Fed.R.Crim.P. 15(a). The burden is on the moving party to prove the necessity for preserving prospective witnesses' testimony by a deposition. U.S. v. Adcock, 558 F.2d 397, 406 (8th Cir. 1977). The stated objective of Rule 15(a) is to preserve evidence for use at trial. U.S. v. Hutchings, 751 F.2d 230, 236 (8th Cir. 1984). The rule is not to be used as a method of pre-trial discovery. The decision to grant or deny a motion to take a deposition rests within the sound discretion of the trial court. Adcock, 558 F.2d 397, 406.
According to the Defendant, Victor Dugger "recently suffered a massive stroke and is expected to be hospitalized during the period when the jury trial is scheduled to proceed." The United States resists the motion based on the fact that the Defendant has not provided the Court with any medical documentation regarding Dugger's condition. However, the Court is satisfied that the Defendant has shown that "exceptional circumstances" exist which warrant the taking of Dugger's deposition at this stage. See U.S. v. Terrazas-Montano, 747 F.2d 467, 469 (8th Cir. 1984) (finding "exceptional circumstances" in authorizing the deposition of four witnesses who engaged in a ten day hunger strike and were found to be suffering ill effects); United States v. Keithan, 751 F.2d 9, 12 (1st Cir. 1984) (allowing deposition to be taken of two witnesses that suffered from physical infirmities which prevented them from leaving their home); Furlow v. United States, 644 F.2d 764, 767 (9th Cir. 1981).
The Court reserves ruling on the issue of whether the deposition may be admissible at trial. See Fed.R.Crim.P. 15(f). Under Rule 804(a) of the Federal Rules of Evidence, the use of deposition testimony may be allowed if the declarant is "unavailable." See Fed.R.Evid. 804(a)(5) and 804(b)(1). Based on the evidence in the record, the Court is not in a position to determine whether Victor Dugger is "unavailable" for trial so as to satisfy Rule 804(b)(1). That is a question best left for another day and will be dependent upon the presentation of competent proof that Dugger is "unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity . . ." Fed.R.Evid. 804(a)(5). The Court simply finds at this time that there exists "exceptional circumstances" which warrant the taking of Dugger's deposition. For the above stated reasons, the Defendant's "Motion to Take Deposition to Preserve Testimony" is GRANTED (Docket No. 21).
IT IS SO ORDERED.