(1) Except as provided in section 29-1926, at any time after the filing of an indictment or information in a felony prosecution, the prosecuting attorney or the defendant may request the court to allow the taking of a deposition of any person other than the defendant who may be a witness in the trial of the offense. The court may order the taking of the deposition when it finds the testimony of the witness:
(a) May be material or relevant to the issue to be determined at the trial of the offense; or
(b) May be of assistance to the parties in the preparation of their respective cases.
(2) An order granting the taking of a deposition shall include the time and place for taking such deposition and such other conditions as the court determines to be just.
(3) Except as provided in subsections (4) and (5) of this section, the proceedings in taking the deposition of a witness pursuant to this section and returning it to the court shall be governed in all respects as the taking of depositions in civil cases, including section 25-1223.
(4)(a) If the prosecuting attorney or defendant seeks to question a witness at a deposition under this section regarding evidence admissible under subsection (2) of section 27-412 or regarding a prior alleged false allegation of sexual assault, such party shall state notice of intent to do so in the motion to depose the witness. Such notice shall not include the name or any identifying information of the witness, nor the grounds upon which the moving party believes such evidence may be relevant and admissible.
(b) If the opposing party objects to questioning described in subdivision (4)(a) of this section, such party shall file a written objection. Such written objection shall not include the name or identifying information of the witness, nor the grounds upon which that party believes the evidence is not relevant or admissible.
(c) Upon the filing of an objection under subdivision (4)(b) of this section, the court shall conduct an in camera hearing regarding such motion. Only the parties shall be permitted to be present at such hearing. The record of such hearing shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without a court order. Such hearing shall be conducted no fewer than seven days before any scheduled deposition in which a party seeks to adduce evidence pursuant to this subsection. At such hearing, the moving party shall state the grounds upon which the moving party believes such evidence may be relevant and admissible.
(d) The court shall allow questioning described in subdivision (4)(a) of this section if the court finds that such testimony could be relevant and admissible at trial.
(5)(a) A sexual assault victim may request to have an advocate of the victim's choosing present during a deposition under this section. The prosecuting attorney shall inform the victim that the victim may make such request as soon as reasonably practicable prior to the deposition. If the victim wishes to have an advocate present, the victim shall, if reasonably practicable, inform the prosecuting attorney if an advocate will be present, and, if known, the advocate's identity and contact information. If so informed by the victim, the prosecuting attorney shall notify the defendant as soon as reasonably practicable.
(b) An advocate present at a deposition under this section shall not interfere with the deposition or provide legal advice.
(c) For purposes of this subsection, the terms sexual assault victim, victim, and advocate have the same meanings as in section 29-4309.
(6) A deposition taken pursuant to this section may be used at the trial by any party solely for the purpose of contradicting or impeaching the testimony of the deponent as a witness.
Notes of Decisions
Cited in
23
cases, 1973–2020 · leading case:
State v. Lierman, 305 Neb. 289 (Neb. 2020).
State v. Lierman, 305 Neb. 289 (Neb. 2020).
· cites it 4× “§ 29-1917 (1) (Reissue 2016) provides for the issuance of a deposition subpoena in a criminal case: (1) Except as provided in section 29-1926, at any time after the filing of an indictment or information in a felony prosecution, the prosecuting attorney or the defendant may…”
State v. McKinney, 730 N.W.2d 74 (Neb. Ct. App. 2007).
· cites it 7× “” As authority for her right to obtain such samples, McKinney relies on Neb. Rev. Stat. § 29-1917 (Reissue 1995).”
State v. Allen, 301 Neb. 560 (Neb. 2018).
· cites it 2× “As an issue of first impression, we concluded that rule 804(2)(a) controlled over Neb. Rev. Stat. § 29-1917 (4) (Reissue 1995) regarding the use of a deposition when the deponent is unavailable as a witness at trial.”
State v. Tuttle, 472 N.W.2d 712 (Neb. 1991).
· cites it 17× “After Tuttle’s case was argued in the Appellate Division of the District Court and subsequent to our review of the disposition recommended by the appellate division, we granted reargument on the question of objective standards for obtaining depositions as discovery authorized by…”
State v. Allen, 560 N.W.2d 829 (Neb. 1997).
· cites it 9× “Allen alleges that (1) Neb. Rev. Stat. § 29-1917 (4) (Reissue 1995) precludes the use of Minor’s deposition for any purpose other than to impeach Minor and (2) Minor’s deposition testimony is not sufficiently trustworthy, rendering its use at trial a violation of the Sixth…”
State v. Vela, 777 N.W.2d 266 (Neb. 2010).
· cites it 4× “[88] Section 29-1917(1) provides that except under circumstances not pertinent to this case, "the prosecuting attorney or the defendant may request the court to allow the taking of a deposition of any person other than the defendant who may be a witness in the trial of the…”
State v. Castor, 599 N.W.2d 201 (Neb. 1999).
· cites it 7× “Castor’s argument fails to consider Neb. Rev. Stat. § 29-1917 (Reissue 1995).”
State v. Anderson, 305 Neb. 978 (Neb. 2020).
· cites it 2× “Alleged Unavailability of Victim Anderson asserts trial counsel was ineffective by failing to move for a court order that the State produce the victim or otherwise assist in making the victim available for the deposi- tion ordered by the court pursuant to Neb. Rev. Stat. §…”
State v. Williams, 26 Neb. Ct. App. 459 (Neb. Ct. App. 2018).
· cites it 4× “A motion for deposition is filed pursuant to Neb. Rev. Stat. § 29-1917 (Reissue 2016).”
State v. Devers, 306 Neb. 429 (Neb. 2020).
· cites it 2× “9 See Neb. Rev. Stat. § 29-1917 (Reissue 2016).”
State v. Roenfeldt, 486 N.W.2d 197 (Neb. 1992).
· cites it 2× “The court denied the request, finding that the material sought was related to a collateral issue, a specific incident of alleged dishonesty, and improper for impeachment purposes.”
State v. Murphy, 587 N.W.2d 384 (Neb. 1998).
· cites it 2× “We note that pursuant to Neb. Rev. Stat. § 29-1917 (Reissue 1995), a motion for depositions must be filed by a defendant after the information is filed.”
— Neb. Rev. Stat. § 29-1917(1) — 4 cases
State v. Vela, 777 N.W.2d 266 (Neb. 2010).
“[88] Section 29-1917(1) provides that except under circumstances not pertinent to this case, "the prosecuting attorney or the defendant may request the court to allow the taking of a deposition of any person other than the defendant who may be a witness in the trial of the…”
State v. Tuttle, 472 N.W.2d 712 (Neb. 1991).
“After Tuttle’s case was argued in the Appellate Division of the District Court and subsequent to our review of the disposition recommended by the appellate division, we granted reargument on the question of objective standards for obtaining depositions as discovery authorized by…”
State v. McKinney, 730 N.W.2d 74 (Neb. Ct. App. 2007).
“” As authority for her right to obtain such samples, McKinney relies on Neb. Rev. Stat. § 29-1917 (Reissue 1995).”
— Neb. Rev. Stat. § 29-1917(3) — 1 case
State v. Lierman, 305 Neb. 289 (Neb. 2020).
“§ 29-1917 (1) (Reissue 2016) provides for the issuance of a deposition subpoena in a criminal case: (1) Except as provided in section 29-1926, at any time after the filing of an indictment or information in a felony prosecution, the prosecuting attorney or the defendant may…”
— Neb. Rev. Stat. § 29-1917(4) — 3 cases
State v. Allen, 560 N.W.2d 829 (Neb. 1997).
“Allen alleges that (1) Neb. Rev. Stat. § 29-1917 (4) (Reissue 1995) precludes the use of Minor’s deposition for any purpose other than to impeach Minor and (2) Minor’s deposition testimony is not sufficiently trustworthy, rendering its use at trial a violation of the Sixth…”
State v. Castor, 599 N.W.2d 201 (Neb. 1999).
“Castor’s argument fails to consider Neb. Rev. Stat. § 29-1917 (Reissue 1995).”
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