As a criminal defense lawyer who also does some civil work, I’m often struck by the differences between civil and criminal law when it comes to pre-trial testimony.
In civil cases, it would be almost unheard of to have a witness testify at trial who had not been deposed prior to trial. Often, litigators will know the witness’s answers for virtually any question before it’s even asked. While there is no question it allows for a better prepared litigator, I think it takes a lot of the fun out of trial work.
On the criminal side, however, depositions are rare and usually only occur when a witness would be unavailable for the jury trial. Depositions are often regarded as an anomaly by criminal practitioners and many defense lawyers who don’t practice in civil courts will sheepishly confess they’ve never had a deposition.
A preliminary hearing in a criminal case, however, can be similar to a deposition in many meaningful ways. In criminal practice, if a defendant is arrested on a warrant, he or she is entitled to a preliminary hearing. In that hearing, the state must establish probable cause to continue the prosecution. If a judge – typically a general sessions judge – determines the state has carried their burden the case is then “bound over” to the grand jury for their consideration about whether an indictment should issue. Critically, however, the preliminary hearing is perhaps the only time that live witnesses will give testimony prior to the jury trial in the matter. Regularly, the alleged victim testifies about what they experienced. Often, the lead detective is called to outline the investigation.
In the hands of a skilled criminal practitioner a witness’ story can be locked in very early in the prosecution, important discoveries can be made and crucial positions adopted. Just like a civil deposition the strength or weakness of a witness can be made evident and the remainder of the criminal case can be dictated by the answers given at a preliminary hearing.
The outcome of a preliminary hearing is rarely in doubt. While the court has to consider whether or not the state has established probable cause, the state’s burden is low; probable cause is almost always able to be established. Therefore, criminal practitioners don’t approach a preliminary hearing with an eye toward “winning” a hearing. Such a feat is usually next to impossible; indeed, there may even be other practical reasons (related to the defendant’s bond) that a practitioner may actually want the case bound over as opposed to dismissed. Instead, the goal for a criminal defense attorney in a preliminary hearing is two-fold. Find out as much as you can about the state’s case and attempt to lock in witness testimony that will be potentially helpful to the defense at trial.
In a civil deposition, attorneys make objections, but the witness still answers the question. In a preliminary hearing, it is not at all uncommon for a criminal defense attorney to not make a single objection. There is no jury present and the simple admission of a piece of evidence in a preliminary hearing is no guarantee of its admission at trial. Rather, the skilled criminal defense attorney doesn’t object because she wants to know the answers to the questions. Knowledge is power and information is the primary goal of the exercise. Often, with the case possibly days or weeks old, it is difficult for a criminal defense attorney to know exactly upon which point the entire case may hinge. A phone record, scientific test or other evidence that may be discovered later could cast a witness answer at an early hearing in an entirely new light. On cross-examination, a skilled criminal defense attorney may not attack a witness as vigorously as they might at trial. She may, instead, ask open-ended questions to gain additional information which could be helpful to the defense later.
The one area where the strategies of civil depositions and preliminary hearings converge is in the endeavor to get the witness to commit to a variety of facts. For example, in a recent hearing involving armed robbery, I got the first witness to commit that she had only seen one of her assailants (who she said was my client) for less than a few minutes. I got the second witness to commit that he had seen the assailant (who he said was my client) for less than 15 seconds. Now, those statements are either going to have to be their statements at trial or those witnesses will have to explain why they said something different at the preliminary hearing (which was much closer in time to the event than the trial will be). Mining for those early commitments – particularly of what a witness did or didn’t see – is vital in conducting a successful preliminary hearing.