witness; when; procedure; use at trial.
as provided in section 29-1926, at any time after the filing of an indictment
or information in a felony prosecution, the prosecuting attorney or the
defendant may request the court to allow the taking of a deposition of any
person other than the defendant who may be a witness in the trial of the offense.
The court may order the taking of the deposition when it finds the testimony
of the witness:
(a) May be material or relevant to the issue to be determined
at the trial of the offense; or
(b) May be of assistance to the parties in the preparation
of their respective cases.
(2) An order granting the taking of a deposition shall include
the time and place for taking such deposition and such other conditions as
the court determines to be just.
(3) The proceedings in taking the deposition of a witness
pursuant to this section and returning it to the court shall be governed in
all respects as the taking of depositions in civil cases.
(4) A deposition taken pursuant to this section may be used
at the trial by any party solely for the purpose of contradicting or impeaching
the testimony of the deponent as a witness.
Source:Laws 1969, c. 235, § 6, p. 870; Laws 1988, LB 90, § 2; Laws 1993, LB 178, § 1; Laws 2011, LB667, § 6.
Child victim or child witness, use of videotape deposition, see section 29-1926.
Subsection (4) of this section restricts the use of a criminal deposition only at the trial rather than at any trial. In other words, it restricts the deposition's use at the criminal trial for which the deposition was taken, and not in a separate civil action. Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).
The plain language of this section, by using the term "may," indicates that the granting of a deposition is within the trial court's discretion. A defendant is not entitled, as a matter of right, to a deposition under this section. State v. Collins, 283 Neb. 854, 812 N.W.2d 285 (2012).
This statute governs the appropriate use of discovery depositions in a criminal case when the deponent is available as a testifying witness. State v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999).
A motion for depositions must be filed by a defendant after the information is filed. State v. Murphy, 255 Neb. 797, 587 N.W.2d 384 (1998).
Subsection (4) of this section governs only the appropriate use of a discovery deposition when the deponent is an available, testifying witness. State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997).
Defendant is not entitled, as a matter of right, to a deposition pursuant to subsection (1) of this section. State v. Tuttle, 238 Neb. 827, 472 N.W.2d 712 (1991).