Court rule 3:13-2. Depositions

3:13-2. Depositions

• (a) When Authorized. If it appears to the judge of the court in which a complaint, indictment or accusation is pending that a material witness is likely to be unable to testify at trial because of death or physical or mental incapacity, the court, upon motion and notice to the parties, and after a showing that such action is necessary to prevent manifest injustice, may order that a deposition of the testimony of such witness be taken and that any designated books, papers, documents or tangible objects that are not privileged, including, but not limited to, writings, drawings, graphs, charts, photographs, sound recordings, images, electronically stored information, and any other data or data compilations stored in any medium from which information can be obtained and translated, if necessary, into reasonably usable form, 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, on written motion of the witness and upon notice to the parties, the court may direct that the witness's deposition be taken, and after the deposition has been subscribed the court may discharge the witness.
• (b) Procedure. The deposition shall be videotaped unless the court orders otherwise. The deposition shall be taken before the judge at such location as will be convenient to all parties. If, because the deposition is to be taken outside of the State, the judge is unable to preside, the deposition shall be taken before a person designated by the judge to perform that function. All parties and counsel shall have a right to be present at the deposition. Examination, cross-examination and determination of admissibility of evidence, shall proceed in the same manner as at trial. Videotaping shall be done by a person independent of both prosecution and defense and chosen by the judge.
• (c) Use. Depositions taken pursuant to this rule may be used at trial in lieu of live testimony of the witness in open court if the witness is unable to testify because of death or physical or mental incapacity. In the case of a witness deposed to allow discharge from commitment for failure to give bail as provided in paragraph (a) above, the deposition may be used, in addition, if the court finds that the party offering the deposition has been unable to procure the attendance of the witness by subpoena or otherwise. The deposition shall be admissible insofar as allowable under the Rules of Evidence applied as though the witness were then present and testifying. The deposition shall not be used unless the court finds that the circumstances surrounding its taking allowed full preparation and cross-examination by all parties. A record of the videotaped testimony, which shall be part of the official record of the court proceedings, shall be made in the same manner as if the witness were present and testifying, but, in addition, the videotape shall be retained by the court. If the judge finds that use of the videotaped testimony would be unfairly prejudicial to a party, the judge may order that only the audiotape of the testimony be used or that the transcript of the witness's testimony be read to the jury if either of these limitations would prevent such prejudice.
• (d) Jury Instruction. In any case where a deposition is used in any form, the court shall instruct the jury that this procedure is employed for the convenience of the witness and that the jury should draw no inference from its use.