Chapter 517: Depositions

Any justice or notary public in the state, any commissioner appointed under the laws of the state to take depositions in other states, any judge or justice of the peace or notary public in any other state or country, may take such deposition.

No person shall write the testimony of a witness, record the testimony of a witness, or act as magistrate in taking the same, if:

I. Such person is a party to the action;

II. Such person is a relative, employee, or attorney of a party to the action;

III. Such person has a financial interest in the action or its outcome;

IV. Such person has entered into an arrangement with a person or entity which has a financial interest in the action or its outcome, where the arrangement purports to create a relationship in which the person transcribing the deposition or recording the deposition will be providing exclusive deposition transcribing or deposition recording services for the interested person or entity; or

V. Such person is employed by or is an independent contractor working for a person or entity which has entered into an arrangement with a person or entity which has a financial interest in the action or its outcome, where the arrangement purports to create a relationship in which the person's employer will be providing exclusive deposition transcribing or deposition recording services for the interested person or entity.

The party proposing to take a deposition shall cause a notice in writing, signed by a justice or notary, stating the day, hour, and place of taking the same, to be delivered to the adverse party, or one of them, or to be left at his or her abode, if either of such parties resides in this state, and within 20 miles of the place of taking, or of the party taking the same, a reasonable time before the taking thereof. A party may, at such party's expense, record a video deposition taken under this chapter, provided the party indicates the intent to record the video deposition in the notice.

If the adverse party resides out of the state, or more than twenty miles from the place of caption, or from the party proposing to take the deposition, a like notice, given to the agent or attorney of such adverse party or left at his abode, shall be sufficient.

No person shall be deemed an agent or attorney for this purpose unless he has indorsed the writ in the cause, or has appeared for his principal before the court, justice, referees or arbitrators, where the action is pending, or has given notice in writing that he is such attorney or agent.

Every witness shall subscribe his deposition, and shall make oath that it contains the truth, the whole truth and nothing but the truth, relative to the cause for which it was taken.

The magistrate taking the deposition shall certify such oath, with the time and place of taking the deposition, the case and court in which it is to be used, that the adverse party was or was not present, was or was not notified, and that he did or did not object.

A copy of the notice left with the adverse party, his agent or attorney, with the return of the officer or affidavit of the person leaving such notice thereon, stating the time of leaving it, shall be annexed to the caption of the deposition, when the adverse party does not attend.

Depositions so taken shall be sealed up by the magistrate taking the same, directed to the court or justice before whom they are to be used, with a brief description of the case, and shall be so delivered into court.

If any party after giving notice to the adverse party neglects or refuses to take a deposition the adverse party may be allowed as costs such amount as the court may deem equitable, not exceeding twenty-five cents a mile for actual travel of himself or his attorney to attend the same, and may have judgment and execution therefor unless notice in writing that the deposition will not be taken, signed by the party giving the original notice, is seasonably given to such adverse party.

I. Except as otherwise provided in this section or by order of the court, depositions shall be taken in the manner provided in civil actions.

II. The court in its discretion may permit either party to take the deposition of any witness, except the defendant, in any criminal case, upon a finding by a preponderance of the evidence that such deposition is necessary:

(a) To preserve the testimony of any witness who is unlikely to be available for trial due to illness, absence from the jurisdiction or reluctance to cooperate; or

(b) To ensure a fair trial, avoid surprise or for other good cause shown. In determining the necessity, the court shall consider the complexity of the issues involved, other opportunities or information available to discover the information sought by the deposition, and any other special or exceptional circumstances which may exist.

III. In any felony case either party may take a discovery deposition of any expert witness who may be called by the other party to testify at trial.

IV. Nothing in this section shall be construed as limiting discovery depositions by agreement between the parties.

V. Notwithstanding this section, no party in a criminal case shall take the discovery deposition of a victim or witness who has not achieved the age of 16 years at the time of the deposition.

I. In any criminal case, the state may move to take videotape trial testimony of any witness, including the victim, who was 16 years of age or under at the time of the alleged offense. Any victim or other witness who was 16 years of age or under at the time of the offense may also move to take videotape trial testimony. The court shall order videotape trial testimony if it finds by a preponderance of the evidence that:

(a) The child will suffer emotional or mental strain if required to testify in open court; or

(b) Further delay will impair the child's ability to recall and relate the facts of the alleged offense.

II. Videotape trial testimony taken pursuant to this section shall be conducted before the judge at such a place as ordered by the court in the presence of the prosecutors, the defendant and his attorneys, and such other persons as the court allows. Examination and cross-examination of the child shall proceed in the same manner as permitted at trial. Such testimony shall be admissible into evidence at trial in lieu of any other testimony by the child.

III. Unless otherwise ordered by the court for good cause shown, no victim or witness whose testimony is taken pursuant to this section shall be required to appear or testify at trial.

IV. Any witness who is 16 years of age or under shall be allowed to have his parent or any other appropriate adult, or both, present during his testimony.

V. The supreme court shall make any rules necessary to implement the provisions of this section.

If a county attorney or the attorney general shall attend the caption of a deposition taken under the provisions of the preceding section he shall receive a reasonable compensation for his services and expenses from the treasury of the county in which the prosecution is pending, his account being first audited and allowed by the superior court in such county.

The attorney general or a county attorney conducting the prosecution in a criminal case may take the deposition of any witness the prosecution intends to call at the trial, if it is determined by a justice of the superior court that:

I. The defendant in the case in which the deposition is sought has been arrested or bound over to the grand jury or has been indicted, and

II. There is reason to believe the life or safety of the witness is endangered because of his willingness or ability to testify, and the testimony expected from the witness is material to the prosecution of the case.

The prosecution desiring to take the deposition of such witness shall present a petition to any justice of the superior court, which petition shall be in writing and under oath, briefly setting forth facts which indicate that the requirements of RSA 517:14-a, I and II have been satisfied. The justice may grant the petition upon receipt thereof or may require further evidence of its allegations. If further evidence is required, such evidence may be received without notice to or appearance by the defendant or his counsel.

If the justice determines that the allegations of the petition are substantiated by the petition itself or by any other evidence, he shall issue an order requiring that the person whose deposition is sought present himself at a fixed time and date before a justice of the superior court of the county in which the trial will be held for the purpose of giving his deposition. Said order shall also require the defendant and his counsel to be present at the taking of the deposition. If the defendant is without counsel at the time the petition under RSA 517:14-b is filed, the court shall be notified of such in the petition and shall appoint counsel to represent the defendant at the deposition. For the purposes of this section, counsel who represented the defendant at a probable cause hearing shall continue to represent the defendant at such deposition unless the defendant obtains new counsel.

The date fixed for the deposition shall be no more than fourteen days from the time the petition is received by the clerk of court except that this time may be extended upon request of the prosecution only. Notice of the court's order, together with a copy of the original petition filed by the prosecution, shall be served upon the defendant and his counsel at least 72 hours before the time fixed for the taking of the deposition.

The justice presiding at a deposition taken under the provisions of this subdivision shall cause a record to be made of the proceedings and shall cause a copy thereof to be furnished to the defendant. Such record or a copy thereof may be used in the trial of the case whenever in the discretion of the court the use thereof shall be deemed necessary for the promotion of justice.

I. Upon petition the superior court may appoint some suitable person as commissioner to take depositions outside this state, for use in causes pending in or returnable to said court.

II. No appointment shall be required when discovery is sought in a foreign jurisdiction that has adopted the uniform foreign depositions law in RSA 517-A, or the Uniform Interstate Depositions and Discovery Act, or other similar process for obtaining out-of-state discovery and testimony. In such matters, discovery and testimony may be sought pursuant to the manner and process required in the foreign jurisdiction.

After the appointment of such commissioner, the notice of the time and place of taking depositions before him, the proceedings in taking such depositions, the certificates to be made by him, and all other formalities with reference to taking, filing and using such depositions shall be the same, so far as applicable, as for taking other depositions in civil causes.

Said commissioner shall have and exercise all the powers conferred by the laws of other states, territories and foreign countries upon commissioners or other persons authorized to take depositions in said other states, territories and foreign countries for use in causes pending in this state.

A commissioner or other person appointed by any court of record of any other state, territory or foreign country, for the purpose of taking depositions in this state for use in causes pending in such court of record, shall have the same powers of procuring the attendance of witnesses to give depositions before him, and of requiring the production of papers and the giving of such depositions, as justices of the peace within this state with reference to depositions for use in civil causes pending within the courts of this state.

I. Justices of the peace shall be entitled to a fee of at least $5 but no more than $50 in the taking of depositions, dependent upon that amount which the justice of the peace feels is sufficient payment for his services.

II. In addition to the fee as provided in paragraph I, a justice of the peace is entitled to $.20 per mile as mileage to swear witnesses.

When by agreement of the parties depositions are taken in shorthand and thereafter transcribed, or are taken down by the use of a typewriter, the court may allow as costs the whole or any part of the expense thereof, as justice may require.