22-3211. (1) If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that the witness' testimony is material and that it is necessary to take the witness' deposition in order to prevent a failure of justice, the court at any time after the filing of a complaint or indictment may upon motion of a defendant and notice to the parties order that the witness' testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place.
(2) If a witness is committed for failure to give bond to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may order that the witness' deposition be taken. After the deposition has been subscribed the court may discharge the witness.
(3) The prosecuting attorney may apply to the court for an order authorizing the prosecuting attorney to take the deposition of any witness for any of the reasons and subject to the limitations stated in subsection (1). Upon the filing of such application, the court shall set the matter for hearing and shall order the defendant to be present at such hearing. If, upon hearing, the court determines that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that the witness' testimony is material and that it is necessary to prevent a failure of justice, the court may authorize the prosecuting attorney to take the deposition of the witness.
(4) If the crime charged is a felony, the prosecuting attorney may apply to the court for an order authorizing the prosecuting attorney to take the deposition of any essential witness. Upon the filing of such application, the court shall set the matter for hearing and shall order the defendant to be present at such hearing. If, upon hearing, the court determines that the witness is an essential witness, the court shall authorize the prosecuting attorney to take the deposition of the witness in the county where the complaint or indictment has been filed. Upon application, the court may order that a deposition taken pursuant to this subsection be videotaped.
(5) The party at whose instance a deposition is to be taken shall give to every other 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.
(6) A deposition shall be taken in the manner provided in civil actions. The court, upon request of the defendant, may direct that a deposition be taken on written interrogatories in the manner provided in civil actions.
(7) Whenever the court authorizes the taking of a deposition, other than a deposition upon written interrogatories, the court shall make a concurrent order requiring that the defendant be present when the deposition is taken. If it appears that the presence of the defendant may be coercive to the witness whose deposition is to be taken, the court shall order that the deposition be taken before a judge.
(8) At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears that:
(a) The witness is dead;
(b) the witness is out of the state and the witness' appearance cannot be obtained, unless it appears that the absence of the witness was procured by the party offering the deposition;
(c) the witness is unable to attend or testify because of sickness or infirmity; or
(d) the party offering the deposition has been unable to procure the attendance of the witness by subpoena or other process.
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 a part of a deposition is offered in evidence by a party, an adverse party may require the offering party to offer all of it which is relevant to the part offered, and any party may offer other parts.
(9) Objections to receiving in evidence a deposition or part thereof may be made as provided in civil actions.
(10) As used in this section, "essential witness" means a prospective witness in the prosecution of a felony who is an eyewitness to the felony or without whose testimony a conviction could not be obtained because the testimony would establish an element of the felony that cannot be proven in any other manner.
History: L. 1970, ch. 129, § 22-3211; L. 1982, ch. 147, § 1; L. 1987, ch. 115, § 1; July 1.
Source or Prior Law:
62-1313, 62-1314, 62-1315.
Law Review and Bar Journal References:
Section follows Rule 15, Federal Rules of Criminal Procedure, except for taking of deposition by the prosecution, Richard H. Seaton and Paul E. Wilson, 39 J.B.A.K. 97, 166 (1970).
"Constitutional Law: Kansans Have No Reasonable Expectation of Privacy in Bank or Telephone Records [State v. Schultz, 850 P.2d 818 (Kan. 1993)]," Kyle Steadman, 33 W.L.J. 466 (1994).
Survey of Recent Cases, 43 K.L.R. 984 (1995).
CASE ANNOTATIONS
1. Cited; discussion of procedure in taking and using depositions. State v. Goodman, 207 Kan. 155, 163, 483 P.2d 1040.
2. Depositions in criminal proceedings denied in absence of showing of necessity to perpetuate testimony. State v. Hill, 211 Kan. 287, 295, 507 P.2d 342.
3. No showing of necessity as required hereunder for taking of pretrial deposition; no abuse of discretion in dismissing motion filed hereunder. State v. Steward, 219 Kan. 256, 259, 260, 547 P.2d 773.
4. Cited; trial court did not err in allowing deposition of an absent witness to be read to the jury; conviction affirmed. State v. Hernandez, 227 Kan. 322, 607 P.2d 452.
5. State postconviction remedies not exhausted in federal habeas corpus proceeding; admission of deposition of unavailable witness discussed. Hernandez v. Atkins, 524 F. Supp. 707, 708, 709 (1981).
6. No error in admitting as evidence unsigned deposition of unavailable witness; conviction of second degree murder affirmed. State v. Staab, 230 Kan. 329, 335, 336, 635 P.2d 257 (1981).
7. Trial court did not abuse its discretion in denying pretrial deposition since witness was in attendance at the trial. State v. Schlicher, 230 Kan. 482, 485, 639 P.2d 467 (1982).
8. Statute not rendered useless by use of inquisitions (K.S.A. 22-3201) after prosecution has commenced. State v. Hobson, 234 Kan. 133, 141, 144, 671 P.2d 1365 (1983).
9. No violation of Kan. Bill of Rights, § 10 shown by admitting videotaped deposition of victim pursuant hereto. State v. Wooldridge, 237 Kan. 737, 741, 703 P.2d 1375 (1985).
10. When testimony material under subsection (c), unnecessary to find witness "essential." State v. Bird, 238 Kan. 160, 171, 708 P.2d 946 (1985).
11. Considered in holding suppression hearing transcript inadmissible under K.S.A. 60-460(c)(2) when state's witness unavailable at trial. State v. Phifer, 241 Kan. 233, 237, 238, 737 P.2d 1 (1987).
12. Statute inapplicable to admissibility of defendant's inquisition statements at trial. State v. Cathey, 241 Kan. 715, 724, 741 P.2d 738 (1987).
13. Failure to compel attendance of or deposition of out-of-state witness examined. State v. Goss, 245 Kan. 189, 196, 777 P.2d 781 (1989).
14. Conviction of theft by deception; admissibility of deposition testimony at trial, time of objection, definition of "unable to attend" determined. State v. Schultz, 252 Kan. 819, 837, 838, 850 P.2d 818 (1993).
15. Hearing on motion to depose witness unavailable at trial is mandatory and defendant is entitled to attend. State v. Willis, 254 Kan. 119, 123, 864 P.2d 1198 (1993).
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