492.303. Essential witness, defined — deposition may be taken by prosecutor, procedure — costs — videotape authorized, used when. — 1. Upon the hearing of an application by a prosecuting attorney, served upon an accused or his counsel not less than five days before the date the deposition will be taken, and a finding that the witness is an essential witness, the state may take the deposition of the witness. A person is an "essential witness" if he is an eyewitness to a felony or if a conviction would not be obtained without his testimony because the testimony would establish an element of the felony that cannot be proven in any other manner. An accused and his spouse are not essential witnesses under any circumstances.
2. The court shall make such orders in connection with the taking of the deposition as will fully protect the rights of personal confrontation and cross-examination of the witness by the defendant and shall make a finding that the prosecuting attorney has fully complied with all of his obligations involving discovery respecting the defendant and that the defendant has had sufficient time to adequately prepare for such deposition. Upon application of the prosecuting attorney, the accused shall be ordered to attend the taking of the deposition. The reasonable personal and traveling expenses of the accused and his counsel shall be taxed as costs and paid as provided by law.
3. The deposition may be taken if the witness is an essential witness. The deposition may be videotaped. At the trial or upon any hearing, any deposition obtained in accordance with this section, so far as it is otherwise admissible under the rules of evidence, may be used by either party for any reason stated in Missouri supreme court rules of criminal procedure. In addition, the deposition may be used by the state if the witness refuses to testify or fails to attend the trial or hearing if this refusal or failure to attend the trial or hearing is not produced by the action of the state.
Notes of Decisions
Cited in
11
cases (
1 in the last 5 years), 1987–2023 · leading case:
State v. Schaal, 806 S.W.2d 659 (Mo. 1991).
State v. Schaal, 806 S.W.2d 659 (Mo. 1991).
· cites it 4× “In addition to the admissibility of a statement under the provisions of section 492.303, the visual and aural recording of a verbal or nonverbal statement of a child when under the age of twelve who is alleged to be a victim of an offense under the provisions of chapter 565, 566…”
State v. Artis, 215 S.W.3d 327 (Mo. Ct. App. 2007).
· cites it 6× “16; see also Section 492.303. The State cannot use a deposition as substantive evidence at trial unless the witness deposed is unavailable and the defendant has had a prior opportunity for cross-examination.”
State v. Naucke, 829 S.W.2d 445 (Mo. 1992).
· cites it 4× “[3] Although Article I, § 18(b), provides for the taking and use of the deposition "on condition that the court make [certain] orders," it appears that the conditions that will fully protect the rights of personal confrontation and cross-examination of the witness by defendant…”
State v. Benwire, 98 S.W.3d 618 (Mo. Ct. App. 2003).
· cites it 2× “In addition to the admissibility of a statement under the provision of Section 492.303, the visual and aural recording of a verbal or nonverbal statement of a child when under the age of twelve who is alleged to be a victim of an offense under the provisions of chapter 565, 566…”
State v. Seever, 733 S.W.2d 438 (Mo. 1987).
· cites it 2× “In addition to the admissibility of a statement under the provisions of section 492.303, the visual and aural recording of a verbal or nonverbal statement of a child when under the age of twelve who is alleged to be a victim of an offense under the provisions of chapter 565, 566…”
State v. Fears, 217 S.W.3d 323 (Mo. Ct. App. 2007).
· cites it 2× “In addition to the admissibility of a statement under the provisions of section 492.303, the visual and aural recording of a verbal or nonverbal statement of a child when under the age of fourteen who is alleged to be a victim of an offense under the provisions of chapter 565,…”
State v. Williams, 948 S.W.2d 429 (Mo. Ct. App. 1997).
· cites it 5× “He argues Section 492.303 RSMo 1994 and the corresponding Rule 25.”
State v. Russell, 872 S.W.2d 866 (Mo. Ct. App. 1994).
· cites it 2× “In addition to the admissibility of a statement under the provisions of section 492.303, the visual and aural recording of a verbal or nonverbal statement of a child when under the age of twelve who is alleged to be a victim of an offense under the provisions of chapter 565, 566…”
State v. Joles, 755 S.W.2d 622 (Mo. Ct. App. 1988).
· cites it 3× “He argues the trial court erred in allowing the State to introduce into evidence the deposition of a certain witness because that witness was not an “essential witness” as defined in RSMo § 492.303 (1986). Defendant also alleges the trial court committed plain error in failing…”
State of Missouri v. Jacob Hilbert, 663 S.W.3d 462 (Mo. 2023).
· cites it 2× “In addition to the admissibility of a statement under the provisions of section 492.303, the visual and aural recording of a verbal or nonverbal statement of a child when under the age of fourteen who is alleged to be a victim of an offense under the provisions of chapter 565,…”
State v. Thomas, 767 S.W.2d 27 (Mo. 1989).
· cites it 2× “In addition to the admissibility of a statement under the provisions of section 492.303, the visual and aural recording of a verbal or nonverbal statement of a child when under the age of twelve who is alleged to be a victim of an offense under the provisions of chapter 565, 566…”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.