The current version of Rule 15 of the Federal Rules of Criminal Procedure allows a party in a criminal case to depose a witness only to “preserve testimony for trial” in “extraordinary circumstances.” By contrast, Rule 30 of the Federal Rules of Civil Procedure allows a party in a civil case to depose a witness for purposes of discovery (not just to memorialize potential trial testimony) as long as the witness has information relevant to the case. The broader availability of depositions makes it much easier to obtain information from witnesses in a civil case than it is in a criminal case during the pretrial process.
The Committee on Rules of Practice and Procedure is considering studying whether to broaden the ability to depose witnesses in a criminal case. A handful of states, in fact, already permit civil-style depositions in criminal cases.
Drawing on their decades of experience as former public defenders and current civil rights litigators, Flowers Keller wrote a letter to the Committee in support of amending Rule 15. The letter is available here. The letter highlights how depositions in civil wrongful conviction cases have helped expose police misconduct and argues that a similar tool should be available before conviction. It makes little sense to give someone a tool to help uncover the truth that is available only after they have been wrongfully convicted. Permitting depositions in criminal cases will help prevent the wrongful conviction to begin with and, as the letter explains, “smooth out this incongruity between civil and criminal cases.”
To date, over 3,749 people have been officially exonerated. But, thousands more have been wrongfully convicted and are still waiting to see justice. The firm’s submission joins a long list of other voices calling for reform of Rule 15 to ensure greater fairness in the criminal legal system.