Court rule 7:7-6. Depositions

Court rule 7:7-6. Depositions

• (a) When Authorized. If it appears to the judge of the court in which a complaint is pending that a witness is likely to be unable to testify at trial because of impending death or physical or mental incapacity, the court, upon motion and notice to the parties, and after a showing that such action is necessary to prevent manifest injustice, may order that a deposition of the testimony of that witness be taken and that any designated books, papers, documents or tangible objects that are not privileged, including, but not limited to, writings, drawings, graphs, charts, photographs, sound recordings, images, electronically stored information, and any other data or data compilations stored in any medium from which information can be obtained and translated, if necessary, into reasonably usable form, be produced at the same time and place.
• (b) Procedure. The deposition shall be videotaped, unless the court otherwise orders. The deposition shall be taken before the judge at a location convenient to all parties. If the judge is unable to preside because the deposition is to be taken outside of the State, the deposition shall be taken before a person designated by the judge. All parties and counsel shall have a right to be present at the deposition. Examination, cross-examination, and determination of admissibility of evidence shall proceed in the same manner as at trial. Videotaping shall be done by a person chosen by the judge who is independent of both prosecution and defense.
• (c) Use. Depositions taken pursuant to paragraph (a) of this rule may be used at trial instead of the testimony of the witness if the witness is unable to testify in court because of impending death or physical or mental incapacity, or if the judge finds that the party offering the deposition has been unable to procure the attendance of the witness by subpoena or otherwise, the deposition shall be admissible pursuant to the Rules of Evidence applied as though the witness were then present and testifying. The deposition shall not be admissible, however, unless the court finds that the circumstances surrounding its taking allowed adequate preparation and cross-examination by all parties. A record of the videotaped testimony, which shall be part of the official record of the court proceedings, shall be made in the same manner as if the witness were present and testifying. On conclusion of the trial, the videotape shall be retained by the court.