Rule 13 - Discovery Depositions (a)By Agreement. In criminal cases either party may take the deposition of any witness, other than the defendant, by agreement of the parties and with the assent of the witness, except as prohibited by statute. (b)Finding by Court. The court in its discretion may permit either party to take the deposition of any witness, except the defendant, in any criminal case upon a finding by a preponderance of the evidence that such deposition is necessary: (1) To preserve the testimony of any witness who is unlikely to be available for trial due to illness, absence from the jurisdiction, or reluctance to cooperate; or (2) To ensure a fair trial, avoid surprise, or for other good cause shown. In determining the necessity, the court shall consider the complexity of the issues involved, other opportunities or information available to discover the information sought by the deposition, and any other special or exceptional circumstances that may exist.
(c) Expert Witness. In any felony case either party may take a discovery deposition of any expert witness who may be called by the other party to testify at trial. (d)Witnesses Under Sixteen Years of Age. No party in a criminal case shall take the discovery deposition of a victim or witness who has not achieved the age of sixteen years at the time of the deposition. (e)Fees for Lay Witnesses. Deposition witnesses under subpoena shall be entitled to witness fees as in any official proceeding unless expressly waived by the parties with the agreement of the witness. (f)Subpoena duces tecum. If a subpoena duces tecum is to be served on the deponent, the notice to the adverse party must be served before service of the subpoena, and the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment. (g)Scope of Depositions. The deponent in a deposition shall ordinarily be required to answer all questions not subject to privilege or excused by the statute relating to depositions, and it is not grounds for refusal to answer a particular question that the testimony would be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence and does not violate any privilege. Adopted effective 1/1/2016 in Strafford and Cheshire counties and 7/1/2016 in Belknap County.Comment
Under paragraph (b), upon a finding of necessity by a preponderance of the evidence, the trial court may order a deposition over a party's objection. The New Hampshire Supreme Court has addressed trial courts' application of the necessity standard in several reported cases. See, e.g., State v. Sargent, 148 N.H. 571 (2002); State v. Howe, 145 N.H. 41 (2000); State v. Hilton, 144 N.H. 470 (1999); State v. Ellsworth, 142 N.H. 710 (1998); State v. Chick, 141 N.H. 503 (1996); State v. Rhoades, 139 N.H. 432 (1995).