ABA Family Legal Guide

Criminal Justice

Court Procedures

Pretrial Procedures

Do criminal cases involve interrogatories and depositions?

Interrogatories are written questions about the facts and background of the case, which the opposing party must answer in writing. Depositions involve the same types of questions, but are oral examinations conducted in a conference room without a judge present. These common civil discovery procedures are rare in criminal cases, although some states such as Florida do permit the taking of depositions in criminal cases. In addition, a rule of federal criminal procedure permits the taking of a witness's deposition where the prosecution or defense can show that it is necessary to preserve his or her testimony because the witness's testimony is material and he or she will be unavailable for trial.

In a civil case, the parties must participate in depositions if requested by the opposing side; in a criminal case, because of the guarantees of the Fifth Amendment, it would be unconstitutional to force the accused to answer questions about the case (unless he or she elects to testify at trial). Criminal defendants must be present at depositions in their cases (or waive that right) because of the Sixth Amendment right to be present and to confront witnesses.