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Can a criminal defendant take the deposition of a co criminal defendant involved in the same criminal case?

West Palm Beach, FL |

can a criminal defendant take the deposition of a co criminal defendant involved in the same criminal case?

Attorney Answers 11

Posted

No. Both defendants have 5th Amendment rights under the Constitution. An individual can not be compelled to testify against himself/herself.

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Posted

No. You can cross-examine him if he is a witness against you or have him testify for you if he is willing to do so, but you cannot compel him to testify against himself.

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Posted

No. The co-defendant will not agree to answer any questions.

This post is for information purposes only and does not constitute legal advice, nor does it establish an attorney client relationship with Mr. Cassara.

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Posted

NO

This is not intended to be legal advise or as legal representation. I am a California personal injury attorney . Be aware that every state has its own statute of limitations; and statutes & case laws that govern the handling of these matters.

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Posted

Everyone has the right to remain silent. So the answer is no unless, that co-defendant becomes a listed witness against you, then you can take that deposition. Usually, this happens after that co-defendant closes their case or enters an agreement with the State Attorney.

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Posted

Absolutely not. Both have protection under 5th amendment.

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1 comment

Jason M. Melton

Jason M. Melton

Posted

Mr Hornsby is right that it "could" happen. However, it doesn't happen because of the 5th amendment.

Posted

The answer is 100% yes. Does the co-defendant have to answer any questions, the answer is 100% no. See the above incorrect answers for why the co-defendant does not have to answer any questions (but could if they wanted to).

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Jason M. Melton

Jason M. Melton

Posted

You're right, it could happen. "See the above incorrect answers" LOL!

Posted

Can you take your co-defendant's deposition: absolutely. Can your co-defendant invoke his/her right to remain silent and refuse to answer your questions: absolutely. As you can see, while you have the right to take the deposition, your co-defendant has the right to remain silent. So, unless you want a transcript of "I decline to answer the question based upon my right to remain silent," don't bother. It's simply a waste of time. However, if your co-defendant's case closes before your case is resolved and your co-defendant is no longer subject to any type of prosecution, then you can depose the "former co-defendant" and (s)he will be required to answer the questions.

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Stanley Eugene Peacock

Stanley Eugene Peacock

Posted

This is the best explanation to the issues involved in taking a deposition of a co-defendant. Usually in co-defendant cases, the prosecutor will offer to "flip" one co-defendant with a lenient plea offer and include in the plea offer a requirement of testifying against the remaining co-defendant(s). If one or more co-defendants take a plea offer and dispose of their charges, the remaining co-defendants with outstanding charges could then depose any co-defendant that had entered a plea. Any co-defendants that have not entered a plea would still be entitled to the 5th amendment right to remain silent. Anytime criminal charges are pending, always retain an experienced criminal defense attorney to answer your questions and defend your rights.

Posted

During the period that the co-defendant's case is pending, he cannot be compelled to speak about the incident in question. Following his plea and the expiration of the appeal period, it may be possible to take his deposition.

Some of the statements made by the co-conspirator may constitute an exception to the hearsay rule, thus allowing their admission at trial.

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Posted

I agree with all of my esteemed colleagues. That said, I like Michael Weimorts answer most.

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Posted

Yes you can take the deposition of a co-defendant but the co-defendant can invoke their right to remain silient. This may change if the co-defendant has pled their case and your case is ongoing.

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