Opinion
Case No. C1-05-34.
June 17, 2005
ORDER DENYING DEFENDANT'S MOTION FOR APPROVAL OF FUNDS TO TAKE DEPOSITIONS
Before the Court is the Defendant's Motion for Approval of Funds to Take Depositions filed on June 7, 2005. On April 27, 2005, Rainbow was charged in a two-count indictment alleging assault with a dangerous weapon and assault resulting in serious bodily injury. The Defendant requests funds for taking depositions of eleven individuals. The Defendant believes the motion is authorized pursuant to Rule 3.2 of the North Dakota Rules of Court.
Rule 15(a) of the Federal Rules of Criminal Procedure governs the taking of depositions in federal criminal cases. Rule 15(a) states in part: "A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. . . ." The stated objective of Rule 15(a) is the preservation of evidence for use at trial. U.S. v. Hutchings, 751 F.2d 230, 236 (8th Cir. 1984). The Defendant requests the taking of depositions of eleven individuals "to clarify their statements and events leading up to the criminal charges against the Defendant" (Docket No. 22). However, the purpose of the rule is not to provide a method of pre-trial discovery. U.S. v. Hutchings, 751 F.2d at 236.
The decision to grant or deny a motion to take a deposition rests within the sound discretion of the trial court. U.S. v. Adcock, 558 F.2d 397, 406 (8th Cir. 1977). In Adcock, the Eighth Circuit Court of Appeals affirmed the district court's denial of taking depositions of nineteen government witnesses because the defendant sought to depose individuals as a method of pre-trial discovery. U.S. v. Adcock, 558 F.2d at 406. The Eighth Circuit Court of Appeals found "exceptional circumstances" in authorizing the deposition of four witnesses who engaged in a ten day hunger strike and were found to be suffering ill effects.U.S. v. Terrazas-Montano, 747 F.2d 467, 469 (8th Cir. 1984). Moreover, local authorities refused to continue housing the witnesses. U.S. v. Terrazas-Montano, 747 F.2d at 469; see also In re Associated Press v. Ladd, 162 F.3d 503, 511 (7th Cir. 1998) (indicating the Seventh Circuit Court of Appeals found "exceptional circumstances" to depose the governor when a juror's illness delayed the trial and the governor was unavailable to testify when the trial resumed); and U.S. v. Ruiz-Castro, 92 F.3d 1519, 1533 (10th Cir. 1996) (indicating the Tenth Circuit Court of Appeals upheld the district court's ruling that "exceptional circumstances" did not exist because the defendant failed to prove that the witnesses would not be available to testify at trial). The burden is on the moving party to prove the necessity for preserving prospective witnesses' testimony by a deposition. See U.S. v. Adcock, 558 F.2d at 406.
The Court finds that the Defendant has not established the need to preserve the testimony of the witnesses by deposition, nor do exceptional circumstances exist in this case to justify the taking of such depositions. The Motion for Approval of Funds to Take Depositions is DENIED (Docket No. 22).
IT IS SO ORDERED.