Depositions in Criminal Cases: Tips for Victims and Witnesses
Authored By: Northwest Justice Project - CLEAR Intake Line
If you are a witness or victim in a criminal case, and you will not be testifying at the trial or you refuse to discuss the case with the prosecuting attorney or the defense attorney, that attorney can ask the court to order you to sit for a deposition, and to bring specific books/papers/objects to the deposition.
- CrR stands for the Washington State Criminal Court Rules. The standards for depositions in criminal cases are in CrR (Criminal Rule) 4.6 and in the general rule on criminal discovery, CrR 4.7.
Can I refuse to testify in a criminal case?
If you are a witness or victim in a criminal case, and you will not be testifying at the trial or you refuse to discuss the case with the prosecuting attorney or defense attorney, that attorney can ask the court to order you to sit for a deposition and bring specific things to the deposition. The lawyer must show both of these things:
Your testimony is important to the case.
Taking your deposition will prevent a failure of justice.
Does the judge have to grant the order?
No. The judge may deny the request to order your deposition if both of these are true:
There is real risk that answering deposition questions may subject you to physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment.
The negative effect of such a result outweighs the usefulness of your answers to the defendant.
The judge can also grant the order but put conditions it. You can ask the court for a protective court order limiting or delaying your deposition. If you object to some of your deposition answers becoming a public record due to any of the above risks, you can ask the court to order certain info left out of the deposition record.
What if I am a victim of domestic violence?
If you are working with a domestic violence advocate, communication with your advocate is confidential. Usually, the advocate can only disclose it with your consent. The advocate may disclose confidential communications if not doing so would likely result in a clear, imminent risk of serious injury or death to someone.
*RCW 5.60.060(7) and (8) is about privileged info with sexual assault and domestic violence advocates.
What if I am a victim of rape?
If you are a deponent in the prosecution of your alleged rapist, the court may want to prevent or limit questions about your past sexual behavior such as
your marriage and/or divorce history
your general reputation for sexual activity or attitudes contrary to your community’s standards
If the order requiring your deposition does not have these limitations, you can ask for a court order before the deposition. Defendant may ask such questions only if Defendant can show both of these:
They are directly material to Defendant’s case.
Answering them will not subject you to physical harm, intimidation, or other negative effects.
Courts are sensitive to your privacy. Even if the court permits such questions in your deposition, you may be able to get an order taking them out of the public record. The court may also prohibit such questions when you testify at trial.
What if I am a sexual assault victim?
You have the right to have an advocate or other support person with you at proceedings about the alleged assault. This includes police and prosecutor interviews and court proceedings. RCW 70.125.060; RCW 7.69.030.