TITLE 24 EVIDENCE

Section 13. Securing Attendance of Witnesses and Production and Preservation of Evidence, 24-13-1 through 24-13-154.

ARTICLE 6 DEPOSITIONS TO PRESERVE TESTIMONY IN CRIMINAL PROCEEDINGS

24-13-130. When deposition to preserve testimony in criminal proceedings may be taken.

1. At any time after an accused has been charged with an offense against the laws of this state or an ordinance of any political subdivision or authority thereof, upon motion of the state or the accused, the court having jurisdiction to try the offense charged may, after notice to the parties, order that the testimony of a prospective material witness of a party be taken by deposition and that any designated evidence not privileged be produced at the same time and place.
2. At any time after an accused has been charged with an offense of child molestation, aggravated child molestation, or physical or sexual abuse of a child, upon motion of the state or the accused, the court having jurisdiction to try the offense charged may, after notice to the parties, order that the testimony of any physician whose testimony is relevant to such charge be taken by deposition and that any designated evidence not privileged be produced at the same time and place.
The court shall not order the taking of the witness's testimony, except as provided in paragraph (2) of subsection (a) of this Code section, unless it appears to the satisfaction of the court that the testimony of the witness is material to the proceeding and the witness:
1. Is in imminent danger of death or great bodily harm;
2. Has been threatened with death or great bodily harm because of the witness's status as a potential witness in a criminal trial or proceeding;
3. Is about to leave this state, and there are reasonable grounds to believe that such witness will be unable to attend a criminal trial or proceeding;
4. Is so sick or infirm as to afford reasonable grounds to believe that such witness will be unable to testify as a witness at a criminal trial or proceeding;
5. Is being detained as a material witness, and there are reasonable grounds to believe that the witness will flee if released from detention; or
6. Is 72 years of age or older.
A motion to take a deposition of a material witness, or a physician as provided in paragraph (2) of subsection (a) of this Code section, shall be verified and shall state:
1. The nature of the offense charged;
2. The status of the criminal proceedings;
3. The name of the witness and an address in Georgia where the witness may be contacted unless, for good cause shown, the court allows an exception to this paragraph;
4. That the testimony of the witness is material to the proceeding or that the witness is a physician as provided in paragraph (2) of subsection (a) of this Code section; and
5. The basis for taking the deposition as provided in subsection (b) of this Code section.
A motion to take a deposition shall be filed in the court having jurisdiction to try the accused for the offense charged; provided, however, that if the accused is charged with multiple offenses, only the court having jurisdiction to try the most serious charge against the accused shall have jurisdiction to hear and decide the motion to take a deposition.
The party moving the court for an order pursuant to this Code section shall give not less than one day's notice of the hearing to the opposite party. A copy of the motion shall be sent to the opposing party or his or her counsel by any means which will reasonably ensure timely delivery, including transmission by facsimile or by digital or electronic means. A copy of the notice shall be attached to the motion and filed with the clerk of court.
If the court is satisfied that the examination of the witness is authorized by law and necessary, the court shall enter an order setting a time period of not more than 30 days during which the deposition shall be taken.
On motion of either party, the court may designate a judge who shall be available to rule on any objections to the interrogation of the witness or before whom the deposition shall be taken. The judge so designated may be a judge of any court of this state who is otherwise qualified to preside over the trial of criminal proceedings in the court having jurisdiction over the offense charged.

(Code 1981, §24-13-130, enacted by Ga. L. 2011, p. 99, § 2/HB 24; Ga. L. 2013, p. 524, § 1-4A/HB 78.)

The 2013 amendment, effective July 1, 2013, in subsection (b), added "or great bodily harm" at the end of paragraph (b)(1), substituted "state," for "state" and substituted "a criminal trial or proceeding" for "the trial" in paragraph (b)(3), substituted "testify as a witness at a criminal trial or proceeding;" for "attend the trial; or" in paragraph (b)(4), substituted "witness," for "witness" and substituted "; or" for a period at the end of paragraph (b)(5), and added paragraph (b)(6); and added "unless, for good cause shown, the court allows an exception to this paragraph" at the end of paragraph (c)(3).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 24-10-130 are included in the annotations for this Code section.

Any technical violation of the notice provision of former O.C.G.A. § 24-10-130 was harmless since the defendant did in fact receive notice of the date, time, and place of the deposition and did not request a predeposition hearing on the propriety or necessity of taking a deposition. Burrell v. State, 258 Ga. 841, 376 S.E.2d 184 (1989) (decided under former O.C.G.A. § 24-10-130).

Defendant's pretrial request to depose victims after the victims refused to talk with defense counsel was properly denied by the trial court. Evans v. State, 233 Ga. App. 85, 503 S.E.2d 344 (1998) (decided under former O.C.G.A. § 24-10-130).

Introduction of material witness's sworn statement improper.

- Because the state never filed a motion to take a material witness's deposition as required by former O.C.G.A. § 24-10-130, the trial court never held a hearing, never found grounds for the deposition, and never ordered that the deposition be taken during a particular time period; therefore, the defendant's conviction for financial transaction card fraud under O.C.G.A. § 16-9-33(a) was reversed and the case was remanded for a new trial. Evans v. State, 275 Ga. App. 621, 621 S.E.2d 584 (2005) (decided under former O.C.G.A. § 24-10-130).

Victim's deposition properly taken.

- Trial court did not abuse the court's discretion in allowing an 80-year-old victim's deposition to be taken under former O.C.G.A. § 24-10-130(b)(4) because the victim had a brain tumor, which predisposed the victim to dizziness and vertigo, and a generalized anxiety disorder, which sometimes caused the victim to suffer chest pains, shortness of breath, blurred vision, confusion, and loss of consciousness when the victim was exposed to unfamiliar or stressful public situations. Austin v. State, 275 Ga. App. 560, 621 S.E.2d 546 (2005) (decided under former O.C.G.A. § 24-10-130).

Deposition of allegedly ineffective counsel.

- When a habeas court found an inmate's claim of ineffective assistance of counsel was not procedurally barred, under O.C.G.A. § 9-14-48(d), for failing to raise the issue on direct appeal because the allegedly ineffective counsel could not, due to illness, attend a hearing held on remand during the inmate's direct appeal, and, thus, could not be cross-examined, this was error because, even if the claim was different enough from barred claims to fall within a defaulted-claim analysis, it overlooked the readily available legal remedy of a court order to obtain counsel's sworn testimony for use at the remand hearing, under former O.C.G.A. § 24-10-130, so counsel's absence from the hearing did not establish cause for failure to raise the ineffective assistance claim. Schofield v. Meders, 280 Ga. 865, 632 S.E.2d 369 (2006), cert. denied, 549 U.S. 1126, 127 S. Ct. 958, 166 L. Ed. 2d 729 (2007) (decided under former O.C.G.A. § 24-10-130).

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