As a general rule, live, in-court testimony is preferred to the use of written or videotaped deposition testimony,119 particularly where credibility is an issue.120 Nonetheless, depositions can be introduced at trial instead of live testimony under certain circumstances. A prerequisite to the introduction of deposition testimony is that the deposition testimony must be otherwise admissible under the Rules of Evidence.121 For example, deposition or former trial or hearing testimony constitutes inadmissible hearsay in a subsequent civil or criminal proceeding unless the party against whom the testimony is being offered (or, in a civil action, a predecessor in interest) had an opportunity and similar motive to develop the testimony by direct, cross- or redirect examination.122 In a criminal action, the use of a deposition where the defendant did not have an opportunity for cross-examination constitutes a denial of the constitutional right to confront witnesses.123

Further, the deposition transcript must be authenticated.124 If opposing counsel refuses to stipulate as to the authenticity of the transcript, then the party, offering the transcript must establish reliability through the testimony of the transcriptionist or any other permissible way.125

In civil actions, the deposition of a party or an officer, director or managing agent or a person designated by a public or private corporation, partnership, association  or governmental agency which is a party, as the person most knowledgeable about the facts at issue, may be used by an adverse party for any purpose.126 The deposition of a witness, whether or not a party, may be used by any party for any purpose in a civil action if the court finds that (i) the witness is dead; (ii) the witness is out of the State of Delaware, unless it appears the absence of the witness was procured by the party offering the deposition; (iii) the witness is unable to testify because of age, illness, infirmity or imprisonment; (iv) the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (v) upon application to the court and notice to the opposing party, exceptional circumstances exist making it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.127

Questions about the competency of the testimony of a witness should be scrutinized by a court when deposition testimony is offered in evidence. When a witness testifies in court, the jury has an opportunity to study the demeanor, attitude, body language, inflections, cadence and other intangible characteristics of the witness in determining the truthfulness and depth of knowledge of that witness. The same is not true with a deposition transcript. As such, the rationale underlying the presumption that the testimony of a witness is competent is inapplicable, and, upon objection by the opposing party, a court should determine whether the deposition contains the inherent indicia of reliability normally found in live testimony.128

In criminal cases, any relevant prior testimony of the defendant can be introduced as an admission, provided relevant constitutional standards are met.129 Prior deposition testimony of a third-party witness in a criminal case is admissible as affirmative evidence, provided that the witness testifies in court and is subject to cross-examination,130 and the statement is voluntary.  A statement is considered involuntary if the totality of the circumstances demonstrate that the will of the witness was overborne. Since custodial interrogations are inherently coercive, any statement by one in custody is presumptively involuntary in the absence of procedural safeguard, such as Miranda warnings.130.1

If the witness is not present and subject to cross-examination in a criminal case, the deposition testimony is not admissible as substantive evidence unless it otherwise satisfies the Delaware Rules of Evidence.131 In either civil or criminal trials, if only a part of a deposition is offered in evidence by a party, an adverse party may require the offeror to introduce any other part which in fairness ought to be considered with the part introduced to place the statement in context, and any party may introduce any other relevant parts.132 The introduction by an adverse party of additional parts of the deposition unrelated to the excerpt offered by a party will be subject to general rules of relevancy and admissibility.

119. Bailey v. State, 521 A.2d 1069, 1083 (Del. 1987); Kolber v. Holyoke Shares, Inc., 213 A.2d 444, 446 (Del. 1965); Ricketts v. State, No. 240, slip op. at 5, Walsh, J. (Del. Mar. 17, 1987) (ORDER), disposition reported at 523 A.2d 981 (Del. 1987) (TABLE); Dimeling v. Packaging Industries Group, Inc., C.A. No. 1157-K, slip op. at 10, Chandler, V.C. (Del. Ch. Nov. 15, 1991), reh’g denied, C.A. No. 1157-K, Chandler, V.C. (Del. Ch. Dec. 19, 1991).

120. Ward v. State, 395 A.2d 367, 369 (Del. 1978).

121. Firestone Tire & Rubber Co. v. Adams, 541 A.2d 567, 572 (Del. 1988); Van de Walle v. Unimation, Inc., C.A. No. 7046, slip op. at 5, Hartnett, V.C. (Del. Ch. Apr. 26, 1988); Science Accessories Corp. v. America Research & Development, C.A. No. 4324, slip op. at 2, Hartnett, V.C. (Del. Ch. June 14, 1978). See also Ch. Ct. R. 32(a); Super. Ct. Civ. R. 32(a); Super. Ct. Cr. R. 15(e); Comm. Pls. Ct. Civ. R. 32(a); Comm. Pls. Ct. Cr. R.15(e); Fam. Ct. Civ. R. 32(a); Fam. Ct. Cr. R. 15(e).

122. D.R.E. 804(b)(1). See also Temple v. Raymark Industries, Inc., 551 A.2d 67, 69 (Del. Super. 1988) (when prior testimony is from a different proceeding, court must consider (i) the subject matter covered by the prior testimony, and (ii) whether the issue applicable to the subject of the testimony which makes that testimony relevant to the present action also made the testimony relevant in the case in which the deposition was taken); Shields Development Co. v. Shields, C.A. No. 5530, slip op. at 2-3, Brown, C. (Del. Ch. April 28, 1981); Farrall v. A. C. & S. Co., C.A. No. 85C-FE-lO, slip op. at 6, Taylor, J. (Del. Super. June 12, 1989) (ORDER).

123. Ward v. State, 395 A.2d 367, 369 (Del. 1978).

124. See D.R.E. 901. See also § 19:3.

125. Ward v. State, 395 A.2d 367 (Del. 1978). See, also In re Asbestos. Litig., C.A. 77C-ASB-2, slip op. at 2, Gebelein, J. (Del. Super. Aug. 10, 1992) (transcript of tape-recorded deposition inadmissible due to numerous transcription errors).

126. Ch. Ct. R. 32(a)(2); Super. Ct. Civ. R. 32(a)(2); Comm. Pls. Ct. Civ. R. 32(a)(2); Fam. Ct. Civ. R. 32(a)(2). See also Lee Tire & Rubber Co. v. Dormer, A.2d 168, 172-73 (Del. 1954).

127. Ct. Ct. R. 32(a)(3); Super Ct. Civ. R. 32(a)(3); Comm. Pls. Ct. Civ. R. 32(a)(3); Fam. Ct. Civ. R. 32(a)(3). See also D.R.E. 804(a) (defining “unavailability” as including situations where the declarant (i) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the statement; (ii) persists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so; (iii) testifies to a lack of memory of the subject matter of the statement; (iv) is unable to be present or testify at the hearing because of death or then-existing physical or mental illness or infirmity; or (v) is absent from the hearing and the proponent of the statement has been unable to procure the witness’s attendance by process or other reasonable means); Firestone Tire & Rubber Co. v. Adams, 541 A.2d 567, 572 (Del. 1988) (witness is unavailable if beyond the subpoena power of the state and will not voluntarily appear); Science Accessories Corp. v. America Research & Development, C.A. No. 4324, slip op. at 2, Hartnett, V.C. (Del. Ch. June 14, 1978) (witness is not unavailable if willing to attend, but party proffering deposition testimony declines).

128. In re Asbestos Litigation, C.A. No. 91C-07-61, Gebelein, J. (Del. Super. Oct. 26, 1992) (deposition testimony excluded where deponent appeared unable to recall facts with any degree of certainty).

129. D.R.E. 801(d)(2). See ch. 17 for a discussion of the application of constitutional standards to admissions.

130. 11 Del. C. § 3507(a) (voluntary out-of-court statement of a witness who is available and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value). This statute departs from the common-law rule of admissibility of out-of-court statements as affirmative evidence. See Keys v. State, 337 A.2d 18, 21-22 (Del. 1975).

130.1.  Taylor v. State, ___ A.2d ___, ___ (Del. 2011).

131. Super. Ct. Cr. R. 15(e); Comm. Pls. Ct. Cr. R. 15(e); Fam. Ct. Cr. R. 15(e); D.R.E. 801, 803, 804. See also J.P. Ct. Cr. R. 17.

132. Ch. Ct. R. 32(a)(4); Super. Ct. Civ. R. 32(a)(4); Super. Ct. Cr. R. 15(e); Comm. Pls. Ct. Civ. R. 32(a)(4) Comm. Pis, Ct. Cr. R. 15(e); Fam. Ct. Civ. R. 32(a)(4); Fam. Ct. Cr. R. 15(e); D.R.E. 106.

© 2010  David L. Finger