DEPOSITION - The sworn testimony
of a witness taken before trial held out of court
with no judge present. The witness is placed under
oath to tell the truth and lawyers for each party
may ask questions. The questions and answers are recorded.
When a person is unavailable to testify at trial,
the deposition of that person may be used. Part of
the pre-trial discovery (fact-finding) process.
The testimony of a witness reduced to writing in
due form of law, taken by virtue of a commission or
other authority of a competent tribunal.
Before it is taken, the witness ought to be sworn
or affirmed to declare the truth, the whole truth,
and nothing but the truth. It should properly be written
by the commissioner appointed to take it, or by the
witness himself or by one not interested in the matter
in dispute, who is properly authorized by the commissioner.
It ought to answer all the interrogatories, and be
signed by the witness, when he can write, and by the
commissioner. When the witness cannot write, it ought
to be so stated, and he should make his mark or cross.
Depositions in criminal cases cannot be taken without
the consent of the defendant.
When the testimony of any person shall be necessary
in any civil cause depending in any district, in any
court of the United States, who shall live at a greater
distance from the place of trial than one hundred
miles, or is bound on a voyage to sea, or is about
to go out of the United States, or out of such district,
and to a greater distance from the place of trial
than as aforesaid, before the time of trial, or is
ancient, or very infirm, the deposition of such person
may be taken de bene esse, before any justice or judge
of any of the courts of the United States, or before
any chancellor, justice, or judge of a supreme or
superior court, mayor, or chief magistrate of a city,
or judge of a county court or court of common pleas
of any of the United States, not being of counsel
or attorney to either of the parties, or interested
in the event of the cause; provided that a notification
from the magistrate before whom the deposition is
to be taken, to the adverse party, to be present at
the taking of the same, and to put interrogatories,
if he think fit, be first made out and served to the
adverse party or his attorney, as either may be nearest,
if either is within one hundred miles of the place
of such caption, allowing time for their attendance
after being notified of not less than at the rate
of one day, Sundays exclusive, for every twenty miles
travel.
And in causes of admiralty and maritime jurisdiction,
or other causes of seizure, when a libel shall be
filed, in which an adverse party is not named, and
depositions of persons circumstanced as aforesaid,
shall be taken before a claim be put in, the like
notification, as aforesaid, shall be given to the
person having the agency or possession of the property
libelled at the time of the capture or seizure of
the same, if known to the libellant. And every person
deposing as aforesaid, shall be carefully examined
and cautioned, and sworn or affirmed to testify the
whole truth, and shall subscribe the testimony by
him or her given, after the same shall be reduced
to writing done only by the magistrate taking the
deposition, or by the deponent in his presence.
The deposition so taken shall be retained by such
magistrate, until he deliver the same with his own,
hand into the court for which they are taken, or shall,
together with a certificate of the reasons as aforesaid,
of their being taken, and of the notice, if any given,
to the adverse party, be by him, the said magistrate,
sealed up and directed to such court, and remain under
his seal until opened in court. And any person may
be compelled to appear and depose as aforesaid, in
the same manner as to appear and testify in court.
And in the trial of any cause of admiralty or maritime
jurisdiction in a district court, the decree in which
may be appealed from, if either party shall suggest
to and satisfy the court, that probably it will not
be in his power to produce the witnesses there testifying
before the circuit court should an appeal be had,
and shall move that their testimony shall be taken
down in writing, it shall be so done by the clerk
of the court. And if an appeal be had, such testimony
may be used on the trial of the same, if it shall
appear to the satisfaction of the court, which shall
try the appeal, that the witnesses are then dead,
or gone out of the United States, or to, a greater
distance than as aforesaid, from the place where the
court is sitting; or that, by reason of age, sickness,
bodily infirmity, or imprisonment, they are unable
to travel or, appear at court, but not otherwise.
And unless the same shall be made to appear on the
trial of any cause, with respect to witnesses whose
depositions may have been taken therein, such depositions
shall not be admitted or used in the cause. Provided,
that nothing herein shall be construed to prevent
any court of the United States from granting a dedimus
potestatem, to take depositions according to common
usage when it may be necessary to prevent a failure
or delay of justice; which power they shall severally
possess nor to extend to depositions taken in perpetuam
rei memoriam, which, if they relate to matters that
may be cognizable in any court of the United States,
a circuit court, on application thereto made as a
court of equity, may, according to the usages in chancery,
direct to be taken.
The clerk of any court of the United States within
which a witness resides or where he is found, is allowed
to issue a subpoena to compel the attendance of such
witness, and a neglect of the witness to attend may
be punished by the court whose clerk has issued the
subpoena, as a contempt. And when papers are wanted
by the parties litigant, the judge of the court within
which they are, may issue a subpoena duces tecum,
and enforce obedience by punishment for a contempt.
Eccl. Law. The act of depriving a clergyman, by a
competent tribunal, of his clerical orders, to punish
him for some offence, and to prevent his acting in
future in his clerical character.
