Opinion
ID Nos. 980500607, 980611006, 9903020087, 9806003852 and 9805006798
June 7, 2000.
ORDER
This 7th day of June, 2000, upon consideration of the defendants' Motion to Take Depositions of Dr. Muench and Dr. Callery, it appears to this Court that:
1. The defendants move the Court for an order to permit defendants to take the depositions of Michael V. Muench, M.D., and Chief State Medical Examiner of the State of Delaware, Richard Callery. Defendants argue that they are entitled to take these depositions as this case involves an issue that rarely arises in criminal cases, i.e. the viability of a fetus and its status for purposes of seeking a murder conviction. Defense counsel argues that the interests of justice mandate that defense counsel be able to depose the doctors on the basis of their opinions at the time of their initial report. There is no indication that either doctor will be unavailable at the time of trial.
2. Defendants cite no law that would allow the defense in a criminal case to take the depositions of possible witnesses where there is no indication the witnesses would be unavailable at the time of trial. A review of current law indicates that such depositions can be used only if a witness is unavailable. The defense has not proferred that these witnesses will be unavailable at trial.
State v. Outten, Del. Super., Cr. A. No. IN92-01-1 144, Herlihy, J. (July 17, 1992) (Mem. Op.); State v. Washington, N.J. Super., 494 A.2d 335 (1985); Commonwealth v. Stasko, Pa. Supr., 370 A.2d 350 (1977); State v. Oakes, R.I. Supr., 458 A.2d 1083 (1983); State v. Sanchez, Conn. App., 592 A.2d 413 (1991).
3. Neither the Federal Rules of Criminal Procedure nor the Delaware Rules of Criminal Procedure authorize the taking of depositions in a case such as this. Superior Court Criminal Rule 15(a), which provides for the taking of depositions in criminal cases, states in pertinent part:
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 . . .
Super. Ct. Crim. R. 15(a).
4. Federal interpretation of Federal Rule of Criminal Procedure 15(a) has held that criminal depositions must be authorized by order of the court and are only to be taken to preserve the testimony for use at trial. The burden of proof in a Rule 15 (a) motion rests with the moving party to demonstrate the necessity for preserving prospective witness' testimony by a deposition. In determining whether exceptional circumstances exist to require such depositions, the federal courts have held that critical considerations are the materiality of the testimony and unavailability of the witness.
The Federal rule is identical to Rule 15(a) of the Delaware Superior Court Criminal Rules quoted above.
United States v. Ismaili, 3rd Cir., 828 F.2d 153, 159 (citing the Note of the Advisory Committee to Rule 15.)
Id (citing U.S. v. Adcock, 8th Cir., 558 F.2d 397, 406, cert. denied, 434 U.S. 921 (1977)).
See United States v. Johnson, 6th Cir., 752 F.2d 206, 209 (1985) (finding unavailability still an important factor in determining whether exceptional circumstances exist).
5. Additionally, Rule 15(a) allows "the testimony of a prospective witness of a party be taken and preserved for use at trial." The Third Circuit has held that Rule 15(a) depositions are restricted to prospective witnesses of a party, and the rule does not authorize taking the deposition of a witness of an adverse party.
Ismaili, 828 F.2d at 159.
6. Here, the defense claims the information it seeks is the opinion of the doctors at the time of their initial reports. Criminal Rule 15 is not a discovery tool nor a substitute for discovery. The defense has not demonstrated the unavailability of the witnesses at trial. Therefore, under Rule 15(a), the defendants are not permitted to depose the witnesses of the State.
Based upon the foregoing reasons, Defendants' Motion to Take the Depositions of Drs. Muench and Callery are DENIED.
IT IS SO ORDERED.