Florida decides that discovery depositions do not qualify as an opportunity for cross-examination

Rocky Sharwell informed me yesterday that the Florida Supreme Court has just issued a long-awaited decision, State v. Lopez, 2008 WL 9979, resolving an intrastate conflict as to whether a discovery deposition constitutes a pre-trial opportunity for confrontation. The court answered the question in the negative -- correctly, resoundingly, and unanimously.

Lopez was convicted of possession of a firearm by a convicted felon. A witness, Ruiz, had made a statement to a police officer that he had Lopez had abducted him at gunpoint. Florida is one of several states that provides for extensive discovery in criminal cases, and Lopez's counsel took Ruiz's deposition. But Ruiz absconded before trial, and the prosecution introduced Ruiz's statement to the officer. The intermediate appellate court, disagreeing with its counterpart in another district, held that this violated the Confrontation Clause, and now the state supreme court has affirmed that holding.

Florida made the decision easy, in a sense, because its rules provide that, absent stipulation of the parties or an order of the court upon a showing of good cause, the defendant may not be physically present at the deposition, and Lopez apparently was not present at Ruiz's deposition. Maryland v. Craig notwithstanding, an opportunity to be face-to-face with the witness is at least presumptively required to satisfy the Confrontation Clause, and the absence of that opportunity here was enough to make this deposition inadequate to preserve testimony.

Moreover, Florida's rules provide that a discovery deposition is only admissible for impeachment and not as substantive evidence. Perhaps that should not be a show-stopper -- unless the defendant secures affirmatively helpful evidence, his purpose in using the deposition at trial is likely to be to impeach the credibility of the witness whose prior statement is being admitted. But this provision indicates quite clearly that the expectation behind the discovery deposition procedure is not that it is being taken for the preservation of testimony at trial; indeed, Florida has another procedure for discovery deposition.

And this ties into a more fundamental point: As the court says, "the motivation for the deposition does not result in the 'equivalent of significant cross-examination."" This is in part because "the purpose of a discovery deposition is at odds with the concept of a meaningful cross-examination." The purpose of the defendant is generally to learn useful information, not to impeach the witness. Indeed, defense counsel may well hold back a line of attack that she believes would be more effective if first used at trial. Quoting a prior case, the court said that a defendant cannot be "expected to conduct an adequate cross-examination as to matters of which he first gained knowledge at the taking of the deposition." I suspect that point won't be ultimately persuasive as a matter of federal constitutional law -- defense counsel must often conduct cross-examination as to matters they first learn about at trial. But as the court emphasizes, the inadequacy of the opportunity for cross is especially glaring if the defendant is "unaware that this deposition would be the only opportunity he would have to examine and challenge the accuracy of the deponent's statements." Of course, one could take the view that if the discovery deposition were deemed a sufficient opportunity for confrontation then the defense would always be on notice that if the witness is unavailable at trial her statements could be admitted without any additional opportunity for confrontation.

The problem, of course, is that this would severely burden the defense, and the entire system, because the defense would have to treat every discovery deposition as if it were the one and only opportunity for confrontation -- unless tactical considerations of the type suggested above made counsel hold back, reserving lines of examination for trial but by doing so taking a chance that the defense would have no chance for confrontation at all.

What should happen, of course, is that when the prosecution, the proponent of the evidence, believes that there is a substantial chance that the witness will be unavailable at trial, it gives notice to the defense and arranges for a deposition to preserve testimony. And Florida does provide for such depositions. It is like most jurisdictions in this respect, I believe. Indeed, depositions to preserve testimony have been around for several hundred years. (Depositions were the form in which equity courts took testimony, and common law courts found them to be a good substitute for live testimony if the witness was unavailable for trial. As I understand it, this idea of the deposition as a means of taking and preserving testimony predates their use for discovery by several hundred years.) I have argued that prosecutors should make more aggressive use of such depositions. (Note, for example, my recent posting, A duty to mitigate with respect to statements made before the crime being charged?

But the Florida court is on solid ground in refusing to treat every-day discovery depositions as if they were preservation depositions. The difference is fundamental, not trivial. To put it simply, in the case of preservation depositions, but not in that of discovery depositions, the warning light is on that this may be the one and only opportunity for confrontation, and the prosecution is willing for the witness to endure the additional ordeal that this may entail.

The Florida court put its decision solely on the gro0und of the U.S. Constitution. It could have protected the decision against review by relying also on the state constitution. But I don't think the U.S. Supreme Court is likely to take this case, in part because the decision is so clearly right. Note also that it is in general accord with People v. Fry, 92 P.3d 970 (Col. 2004) ("the preliminary hearing is not intended to be a mini-trial . . . "), on which I commented in a posting back in 2005, Prior opportunity for cross-examination.

One other aspect of Lopez is particularly noteworthy. Ruiz made his statement six to eight minutes after the report of the alleged assault; the state supreme court affirmed a ruling that it qualified as an excited utterance. He was still near the scene, as was Lopez himself, standing twenty-five yards away in the same parking lot. A short time later, Ruiz revealed that the gun in question was under the front passenger seat of his car. The court held that the statement was testimonial, and that there was no ongoing emergency at the time. I believe that is correct. But many courts would have taken the path of least resistance and come out the other way. Good for the Florida court for its steadfastness!