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Tennessee Rules of Criminal Procedure, Rule 15

RULE 15. DEPOSITIONS

(a) When Taken. Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that the witness's deposition be taken. After the deposition has been subscribed the court may discharge the witness.

(b) Notice of Taking. The party at whose instance a deposition is to be taken shall give to every party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time or change the place for taking the deposition. The officer having custody of a defendant shall be notified of the time and place set for the examination and shall, unless the defendant waives in writing the right to be present, produce the defendant at the examination and keep him or her in the presence of the witness during the examination, unless, after being warned by the court that disruptive conduct will cause the defendant to be removed from the place of the taking of the deposition, the defendant persists in conduct which is such as to justify being excluded from that place. A defendant not in custody shall have the right to be present at the examination upon request subject to such terms as may be fixed by the court, but the failure, absent good cause shown, to appear after notice and tender of expenses in accordance with subdivision (c) of this rule shall constitute a waiver of that right and of any objection to the taking and use of the deposition based upon that right.

(c) Payment of Expenses. Whenever a deposition is taken at the instance of the State, or whenever a deposition is taken at the instance of a defendant who is unable to bear the expenses of the taking of the deposition, the court may direct that the expense of travel and subsistence of the defendant and the defendant's attorney for attendance at the examination and the cost of the transcript of the deposition shall be paid by the State.

(d) How Taken. Subject to such additional conditions as the court shall provide, a deposition shall be taken and filed in the manner provided in civil actions except as otherwise provided in these rules, provided that (1) in no event shall a deposition be taken of a party defendant without the party defendant's consent, and (2) the scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself. The State shall make available to the defendant or the defendant's counsel for examination and use at the taking of the deposition any statement of the witness being deposed which is in the possession of the State and to which the defendant would be entitled at the trial.

(e) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the Tennessee Rules of Evidence, may be used as substantive evidence if:

(1) the witness is unavailable, as unavailability is defined in subdivision (h) of this rule; or

(2) Upon motion and notice, it appears that such exceptional circumstances exist as make it desirable, in the interest of justice with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.

If only part of a deposition is offered in evidence by a party, an adverse party may require the party to offer all of it which is relevant to the part offered, and any party may offer other parts.

A declarant is not unavailable as a witness if the declarant's exemption, refusal, inability, or absence is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying.

(f) Objections to Deposition Testimony. Objections to deposition testimony or evidence or parts thereof and the grounds for the objection shall be stated at the time of the taking of the deposition.

(g) Deposition by Agreement Not Precluded. Nothing in this rule shall preclude the taking of a deposition, orally or upon written questions, or the use of a deposition, by agreement of the parties.

(h) Definition of Unavailability. As used in this rule, "unavailability as a witness" includes situations in which the declarant:

(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

(2) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

(3) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(4) Is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance by process or other reasonable means.

[Amended effective July 1, 1991.]

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Committee Comment

The law in Tennessee, under T.C.A. §40-2428 and going back to the code of 1858, has long provided that the accused may, by order of the court, have the depositions of witnesses taken in the manner prescribed for taking depositions in civil cases, on notice to the District Attorney. Rule 15 extends to the State the same potential use of depositions.

The case law decided under T.C.A. §40-2428 makes it clear that such depositions can only be taken by leave of the court, and not upon agreement of counsel without such a court authorization. Curtis v. State, 82 Tenn. 502 (1884). The same rule applies here. Exceptional circumstances must be present; in that context, the trial judge may permit the taking but is not required to. The Commission intends that depositions be taken only in those cases wherein their use is clearly necessary, and that their taking not be authorized in other cases. The Commission intends the provisions of section (g) to mean that a deposition can be taken or used by agreement of the parties, but only after the court has first approved and authorized the taking. The "taking by agreement" relates to a waiver of notice, etc.; "use by agreement" simply means that where the taking of a deposition has been authorized by the court, it may be admitted into evidence by agreement without strict compliance with the provisions relative to admissibility. The Commission intends that the taking of depositions always be expressly authorized by the trial judge, and not left to the agreement of counsel. The Commission also wants to make it clear that depositions are not meant to function as discovery devices in criminal cases. Their taking is meant to be tightly confined to those exceptional cases where the interests of justice require the taking for the preservation of testimony for use at trial, and not for discovery.

This rule conforms to its federal counterpart, except that the Commission added section (e)(3) to permit the use of a deposition as proof under extraordinary circumstances in the interest of justice.

Advisory Commission Comment to 1991 Amendment

Conforming amendments to the Tennessee Rules of Evidence are twofold. Former Rule 15(e)(2) is deleted; it allowed substantive use of prior inconsistent depositions if the deponent testified at trial. Rule 15(e)(3) is amended and former Rule 15(h)(3) deleted in order to eliminate lack of memory as a ground of unavailability. T.R.Evid. 804(a) contains no such ground.

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