CHAPTER 23A-12

(RULE 15) DEPOSITIONS

23A-12-1    (Rule 15 (a)) Depositions ordered only as specifically authorized--Order to preserve testimony for trial--Production of other evidence--Witness committed on failure to give bail.

23A-12-2    (Rule 15(b)) Notice to parties of time and place of deposition--Production of defendant in custody--Defendant's right to attend.

23A-12-3    (Rule 15(c)) Governmental payment of defendant's expenses for deposition.

23A-12-4    (Rule 15(d)) Manner of taking and filing deposition--Disclosure to defense of prior statements of witness.

23A-12-5    Sealing and endorsement of deposition--Transmittal to court.

23A-12-6    (Rule 15(e)) Circumstances permitting use of deposition at trial--Use for impeachment--Parts of deposition used.

23A-12-7    (Rule 15(f)) Time of objecting to testimony in deposition--Objections to receiving in evidence.

23A-12-8    (Rule 15(g)) Agreement of parties as to taking or use of deposition.

23A-12-9    Video recording of young sex crime or human trafficking victim's testimony at preliminary hearing or deposition--Use at trial.

23A-12-10    Hearing to record testimony as to additional evidence.

23A-12-1. (Rule 15 (a)) Depositions ordered only as specifically authorized--Order to preserve testimony for trial--Production of other evidence--Witness committed on failure to give bail.

Depositions shall not be ordered for discovery or any other purpose except as specifically provided by statute or rule.

Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that his deposition be taken. After the deposition has been subscribed the court may discharge the witness.

Source: SL 1978, ch 178, § 131; SL 1979, ch 159, § 10.

23A-12-2. (Rule 15(b)) Notice to parties of time and place of deposition--Production of defendant in custody--Defendant's right to attend.

The party at whose instance a deposition is to be taken in the state shall give to every party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time for taking the deposition. The officer having custody of a defendant shall be notified of the time and place set for the examination and shall, unless the defendant waives in writing the right to be present, produce him at the examination and keep him in the presence of the witness during the examination, unless, after being warned by the court that disruptive conduct will cause him to be removed from the place of the taking of the deposition, he persists in conduct which is such as to justify his being excluded from that place. A defendant not in custody shall have the right to be present at the examination upon request subject to such terms as may be fixed by the court, but his failure, absent good cause shown, to appear after notice and tender of expenses in accordance with § 23A-12-3 shall constitute a waiver of that right and of any objection to the taking and use of the deposition based upon that right.

Source: SL 1978, ch 178, § 132.

23A-12-3. (Rule 15(c)) Governmental payment of defendant's expenses for deposition.

Whenever a deposition is taken at the instance of the prosecuting attorney, or whenever a deposition is taken at the instance of a defendant who is unable to bear the expenses of the taking of the deposition, the court may direct that the expense of travel and subsistence of the defendant and his attorney for attendance at the examination and the cost of the transcript of the deposition shall be paid by the appropriate governmental unit.

Source: SL 1978, ch 178, § 133.

23A-12-4. (Rule 15(d)) Manner of taking and filing deposition--Disclosure to defense of prior statements of witness.

Subject to such additional conditions as the court may provide, a deposition shall be taken and filed in the manner provided in civil actions except as otherwise provided in this title; provided that:

(1)    In no event shall a deposition be taken of a party defendant without his consent; and

(2)    The scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself.

The prosecuting attorney shall make available to the defendant or his counsel for examination and use at the taking of the deposition any statement of the witness being deposed which is in the possession of the prosecuting attorney and to which the defendant would be entitled at the trial.

Source: SL 1978, ch 178, § 134.

23A-12-5. Sealing and endorsement of deposition--Transmittal to court.

A deposition taken pursuant to this chapter shall be enclosed, sealed, and endorsed with the title of the action and the name of the officer taking it. Such officer shall address and transmit it to the clerk of the court where the action is pending. It shall remain under seal until opened by the clerk by order of the court, or at the request of a party to the action or his attorney or the prosecuting attorney.

Source: SDC 1939 & Supp 1960, § 34.2703; SDCL, § 23-41-19; SL 1978, ch 178, § 135.

23A-12-6. (Rule 15(e)) Circumstances permitting use of deposition at trial--Use for impeachment--Parts of deposition used.

At a trial or any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears:

(1)    That a witness is dead;

(2)    That the witness is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition;

(3)    That the witness is unable to attend or testify because of sickness or infirmity; or

(4)    That the witness is confined in jail or prison outside the state.

When a deposition has once been taken, it may be read in any stage of the same action and on any trial thereof. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require him to offer all of it which is relevant to the part offered, and any party may offer other parts.

Source: SDC 1939 & Supp 1960, §§ 34.2606, 34.2704; SDCL, §§ 23-41-13, 23-41-20; SL 1978, ch 178, § 136.

23A-12-7. (Rule 15(f)) Time of objecting to testimony in deposition--Objections to receiving in evidence.

Objections to deposition testimony or evidence or parts thereof and the grounds for the objection shall be stated at the time of the taking of the deposition. Objections to receiving in evidence a deposition or part thereof may be made on the basis that the conditions of § 23A-12-6 are no longer applicable.

Source: SL 1978, ch 178, § 137.

23A-12-8. (Rule 15(g)) Agreement of parties as to taking or use of deposition.

Nothing in this chapter shall preclude the taking of a deposition, for use at trial, orally or upon written questions, or the use of a deposition, by agreement of the parties with the consent of the court.

Source: SL 1978, ch 178, § 138.

23A-12-9. Video recording of young sex crime or human trafficking victim's testimony at preliminary hearing or deposition--Use at trial.

If a victim is less than sixteen years of age at the time of a preliminary hearing or deposition, a prosecuting or defense attorney may apply for an order that the victim's testimony at the preliminary hearing or deposition, in addition to being stenographically recorded, be recorded and preserved on video, if a defendant has been charged with a violation of:

(1)    Subdivision 22-22-1(1) or (5);

(2)    § 22-22-7; or

(3)    § 22-49-2.

The scope and manner of the examination and cross-examination must be such as would be allowed at the trial. Notice of any such deposition pursuant to this section must conform in all respects to the notice requirements contained in § 23A-12-2.

The application for the order must be in writing and made at least three days before the preliminary hearing or deposition.

Upon timely receipt of the application, the court may order that the testimony of the victim given at the preliminary hearing or deposition be taken and preserved on video. The video must be transmitted to the clerk of the court in which the action is pending.

If, at the time of trial, the court finds that the victim is otherwise unavailable within the meaning of subdivision 19-19-804(a), or that such testimony would in the opinion of the court be substantially detrimental to the well-being of the victim, the court may admit the video of the victim's testimony at the preliminary hearing or deposition as former testimony under subsection 19-19-804(b)(1).

Source: SL 1983, ch 184, § 1; SL 1985, ch 195; SL 1986, ch 191, § 1; SL 2008, ch 118, § 2; SL 2022, ch 72, § 1.

23A-12-10. Hearing to record testimony as to additional evidence.

Upon timely receipt of a notice that additional evidence has been newly discovered and for good cause shown, the court may order an additional hearing to record the victim's testimony relevant to the newly discovered evidence on video.

Source: SL 1983, ch 184, § 2; SL 2022, ch 72, § 2.