(a) When Taken.(1) In General. 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. If the court orders the deposition to be taken, it may also require the deponent to produce at the deposition any designated material that is not privileged, including any book, paper, document, record, recording, or data.(2) Detained Material Witness. A witness who is detained under Mississippi Code Section 99-15-7 may request to be deposed by filing a written motion and giving notice to the parties. The court may then order that the deposition be taken and may discharge the witness after the witness has signed under oath the deposition transcript.(b) Notice.(1) In General. A party seeking to take a deposition must give every other party reasonable written notice of the deposition's date and location. The notice must state the name and address of each deponent. If requested by a party receiving the notice, the court may, for good cause, change the deposition's date or location.(2) To the Custodial Officer. A party seeking to take the deposition must also notify the officer who has custody of the defendant of the scheduled date and location.(c) Defendant's Presence.(1) Defendant in Custody. The officer who has custody of the defendant must produce the defendant at the deposition and keep the defendant in the witness's presence during the examination, unless the defendant: (A) waives in writing the right to be present; or(B) persists in disruptive conduct justifying exclusion after being warned by the court that disruptive conduct will result in the defendant's exclusion.(2) Defendant Not in Custody. A defendant who is not in custody has the right, upon request, to be present at the deposition, subject to any conditions imposed by the court. If the State tenders the defendant's expenses as provided in section (d), but the defendant still fails to appear, the defendant - absent good cause - waives both the right to appear and any objection to the taking and use of the deposition based on that right.(d) Expenses. If the deposition was requested by the State, the court may - or, if the defendant is unable to bear the deposition expenses, must - order the State to pay: (1) any reasonable travel and subsistence expenses of the defendant and the defendant's attorney to attend the deposition; and(2) the costs of the deposition transcript.(e) Manner of Taking. Unless these Rules or a court order provides otherwise, a deposition must be taken and filed in the same manner as a deposition in a civil action, except that: (1) A defendant may not be deposed without that defendant's consent.(2) The scope and manner of the deposition examination and cross-examination must be the same as would be allowed during trial.(3) The State must provide to the defendant or the defendant's attorney, for use at the deposition, any statement of the deponent in the State's possession to which the defendant would be entitled at trial.(4) The trial judge may preside over the taking of the deposition.(f) Use as Evidence. Depositions may be used in the manner provided by Mississippi Rule of Civil Procedure 32.(g) Objections. A party objecting to deposition testimony or evidence must state the grounds for the objection during the deposition.(h) Depositions by Agreement Permitted. The parties may, by agreement, take and use a deposition with the court's consent.Comment
Rule 17.5 is based upon Federal Rule of Criminal Procedure 15. As with federal practice, taking a deposition requires a court order and a showing of "exceptional circumstances." Depositions may be ordered by the court to preserve testimony or to take the statement of a witness in order that the witness may be released from incarceration. See Miss. Code Ann. § 99-15-7 (detention of material witness).
Section (c) gives the defendant a right to be present, as the purpose of the deposition is perpetuation of testimony for use at trial. A deposition cannot be used at trial without the defendant's consent if the defendant was not present at its taking and did not waive the right to be present in writing. See Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).
If deposition testimony is used at trial, the rights of the defendant under the Confrontation Clauses of Federal and State Constitutions must be respected. See Conners v. State, 92 So. 3d 676 (Miss. 2012); Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006); Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004 ).