2.13(1)By defendant. A defendant in a criminal case may depose all witnesses listed by the State in the minutes of testimony in the same manner, with the same effect, and with the same limitations, as in civil actions except as otherwise provided by statute and these rules.2.13(2)Reciprocal disclosure of witnesses.a. At or before the taking of any deposition by a defendant, the defendant shall file a written list of the names and addresses of all witnesses expected to be called for the defense except the defendant and surrebuttal witnesses.b. The defendant shall have a continuing duty before and throughout trial promptly to disclose additional defense witnesses.c. If the defendant has taken depositions and does not disclose to the prosecuting attorney all of the defense witnesses, except the defendant and surrebuttal witnesses, at least 9 days before trial, the court may order the defendant to permit the discovery of such witnesses, grant a continuance, or enter such other order as it deems just under the circumstances. The court may, if it finds that no less severe remedy is adequate to protect the State from undue prejudice, order the exclusion of the testimony of any such witnesses.d. The State may depose any witness listed by the defense.2.13(3)Objections to depositions. If either party objects to the taking of a deposition, the court shall determine whether discovery of the witness is necessary in the interest of justice and shall allow or disallow the deposition.2.13(4)Time of taking. If the defendant does not waive speedy trial, depositions shall be taken within 30 days after arraignment unless the deadline is extended by the court. If the defendant waives speedy trial, depositions shall be taken at least 30 days before trial unless the court orders otherwise.2.13(5)Presence of defendant. Subject to rules 2.13(6) (c) and 2.27(1) (c), the defendant is required to be personally present at all depositions. If the identity of the defendant is at issue and the defendant makes a timely motion, the court may allow the defendant to be absent during the part of the deposition when the parties question an eyewitness concerning the identity of the perpetrator of the crime. In that event, all parties shall complete their examination of the eyewitness regarding identity before the defendant is required to be present.2.13(6)Special circumstances.a. Perpetuation of testimony where a witness will be unavailable at trial. Whenever the interests of justice make necessary the taking of the deposition of a prospective witness for use at trial, the court may, upon motion of a party and notice to the other parties, order that the deposition be taken and that any designated materials, not privileged, be produced at the same time and place. This provision is available even if the moving party is the only party intending to call the prospective witness at trial.b. Continuation of the prosecuting attorney's investigation. After a complaint or indictment has been filed, the prosecuting attorney may continue to subpoena witnesses and utilize subpoenas duces tecum, as provided in rule 2.5(6). However, the defendant shall receive notice, and if a witness appears pursuant to a subpoena, the defendant shall have the opportunity to appear, cross-examine the witness, and review materials produced by the witness.c. Minors. A complaining witness who is a minor shall have the right to have an interview or deposition taken outside the personal presence of the defendant. To exercise this right, the minor or the State on the minor's behalf shall file a notice with the court, in which case the interview or deposition shall proceed as follows: (1) There shall be an audiovisual connection or other method allowing the defendant to see and hear the interview or deposition.(2) The manner of taking of the interview or deposition shall ensure that the defendant shall not have contact with the minor.(3) The defendant shall be allowed to communicate with the defendant's attorney in the room where the minor is being interviewed or deposed by an appropriate electronic method.66GA, ch 1245(2), § 1301; 67GA, ch 153, § 38; amendment 1980; amendment 1981; amendment 1982; 1985 Iowa Acts, ch 174, § 14; Report November 9, 2001, effective 2/15/2002; October 14, 2022, Order May 31, 2023, effective 7/1/2023; Court Order June 30, 2023, temporarily effective 7/1/2023, permanently effective 8/29/2023; court order August 30, 2024, effective 10/30/2024.COMMENT:
Rule 2.13(3). The former rule recognized only two objections to depositions: (1) that the witness was a foundation witness, and (2) that the witness had been adequately examined at the preliminary hearing. The revised rule recognizes there may be other legally valid objections to a deposition, e.g., the witness has already been deposed and there is no need for a second deposition.