Depositions in Criminal Cases

By Morley Swingle

I. INTRODUCTION

There are two types of depositions in criminal cases (three if you count "depositions" of child victims under 492.675). Each involves different procedures. The prosecutor should consider the advantages and disadvantages of each type of deposition before deciding which, if any, to use in a given case.

II. DISCOVERY DEPOSITIONS -- PROSECUTION MAY TAKE DEPOSITIONS OF DEFENSE WITNESSES WITHOUT PRIOR APPROVAL OF COURT.

Since 1995, Missouri prosecutors have been authorized to take discovery depositions in criminal cases without prior court approval.

State ex rel. Kinsky v. Pratte, 994 S.W.2d 74 (Mo. App. E.D. 1999). Prosecution wanted to take depositions of defense witnesses under Section 545.415, which provides that the prosecution may take depositions in the same manner as governed by the rules of civil procedure. The defense argued that the trial court should quash the notice of depositions since Rule 25.14 talks only in terms of depositions to preserve the testimony of essential witnesses after prior court approval. HELD: The newer statute, Section 545.415, effective 7/1/95, allows the State to take discovery depositions without prior court approval; it is a different type of deposition from those designed to preserve testimony of essential witnesses after court order. The State's notice to take discovery depositions should not have been quashed. NOTE: "This statute cannot change the substantive law applicable to preserve testimony. Such depositions are [still] subject to [Rule 25.14]."

2. Some Additional Rules:

III. DEPOSITIONS TO PRESERVE TESTIMONY OF ESSENTIAL WITNESS.

Depositions to preserve the testimony of essential witnesses actually have three sources of authority. They are specifically permitted by Article I, Section 18(b) of the Missouri Constitution, by Supreme Court Rule 25.14, and by Section 492.303, RSMo.

Features of Depositions to Preserve Testimony:

1. Prosecutor must obtain permission of the Court;

2. Court should make a finding that the witness was an eyewitness to a felony or that the testimony would establish an element of the felony that otherwise might not be proven;

3. Defendant should be present or expressly waive his constitutional right to be present. (At the request of the prosecutor, the court can order the defendant to appear.)

4. Reasonable travel expenses of the defense attorney and defendant are to be paid by the prosecution, to be later assessed as part of the court costs;

5. Discovery should be provided to the defense prior to the deposition in sufficient time for the defense to be prepared to adequately cross-examine the witness. (The Court should make a finding that the prosecutor has fully complied with all obligations of discovery and that the defense has sufficient time to prepare for the deposition.)

6. This deposition is not available for a deposition of the Defendant or Defendant’s spouse.

7. This deposition is only available in felony cases.

"Upon a hearing and finding by the circuit court in any case wherein the accused is charged with a felony, that it is necessary to take the deposition of any witness within the state, other than the defendant and spouse, in order to preserve the testimony, and on condition that the court make such orders as will fully protect the rights of personal confrontation and cross-examination of the witness by defendant, the state may take the deposition of such witness and either party may use the same at the trial, as in civil cases, provided there has been substantial compliance with such orders. The reasonable personal and travel expenses of defendant and his counsel shall be paid by the state or county as provided by law."

2. Supreme Court Rule.

Rule 25.14. Misdemeanors or Felonies – Depositions By State – When and How Taken.

"Upon a hearing of an application of counsel for the state duly served upon defendant or his counsel, and a finding by the court having jurisdiction to try the case wherein the defendant is charged with a felony, that it is necessary to take the deposition of any witness within the state, other than defendant and spouse, in order to preserve the testimony, and on condition that the court make such orders as will fully protect the rights of personal confrontation and cross-examination of the witness by defendant, the state may take the deposition of such witness and either party may use the same at the trial, subject to Rules 25.13 and 25.15 provided there has been substantial compliance with such orders. The reasonable personal and traveling expenses of defendant and his counsel shall be taxed as costs and paid by the state or county as provided by law. Wherever it is practicable to do so, the court shall direct that the deposition be taken in the county where the case is pending. In such cases, the officer before whom the deposition is to be taken shall have authority to issue a subpoena which shall require the attendance of the witness at the deposition in the same manner as is provided with respect to the attendance of witnesses at the trial of a criminal case."

Rule 25.15. Misdemeanors or Felonies – Deposition Offered By State – When Admissible.

"At the trial or upon any hearing, any deposition obtained in accordance with Rule 25.14, so far as it is otherwise admissible under the rules of evidence, may be used by the state if it appears: (1) that the witness is dead, or (2) that the state has made a good faith effort to obtain the presence of the witness at the hearing or trial, but has been unable to procure the attendance of the witness."

Rule 25.13. Misdemeanors or Felonies – Deposition Offered By Defendant – When Admissible.

"At the trial or upon any hearing any deposition obtained in accordance with the Rules, so far as it is otherwise admissible under the rules of evidence, may be used by defendant if it appears: (1) that the witness is dead, or (2) that the witness is out of the state, unless it appears that the absence of the witness was procured by defendant, or (3) that the witness is unable to attend or testify because of sickness or infirmity, or (4) that the witness is confined in prison, or (5) that the defendant, after good faith effort, has been unable to procure the attendance of the witness by subpoena, or (6) that the witness is a judge of a court of record or a practicing attorney or physician, and engaged in the discharge of his official or professional duty at the time of trial. The facts which would authorize the use of any deposition may be established by the testimony of the deposing witness or by the certificate of the officer before whom the deposition is taken."

3. Statutory Authorization.

Section 492.303, RSMo. Essential Witness, Defined – Deposition May be Taken by Prosecutor, Procedure – Costs – Video Tape 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 o 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."

IV. THE TEST FOR ADMISSIBILITY OF DEPOSITION REQUIRES TWO-PART SHOWING BY PROSECUTION THAT

(1) DEFENDANT’S 6^TH AMENDMENT RIGHT TO CONFRON-TATION HAS BEEN SATISFIED, AND (2) AN ADEQUATE SHOWING THAT THE WITNESS HAS BECOME UNAVAILABLE.

State v. Glease, 956 S.W.2d 926 (Mo. App. S.D. 1997). Defendant was charged with sodomy of his granddaughters, ages 8 and 6. The crime occurred in Missouri but the children lived in Indiana. They had been examined by a doctor in Indiana, who is a professor of pediatrics in Indianapolis and an expert in the area of child abuse. The prosecutor decided to take the deposition of the Indiana doctor in Indiana and filed a "Notice to Take a Preservation Deposition." No hearing was held to address such issues as confrontation and cross-examination rights and/or expenses of Defendant and counsel to travel to Indiana. Defendant and counsel did not show up for the deposition. Later, over objection, the prosecution was allowed to read the deposition into evidence at trial. HELD: Reversed. "In a state criminal case, although depositions may be taken by either a defendant (Rule 25.12) or the state (Rule 25.14), in accordance with the rules of civil procedure, their use is governed by the rules of criminal cases." In addition, the 6th Amendment adds requirements in criminal cases not present in civil cases. Specifically, in a criminal case, in order to use a deposition as substantive evidence, the State must satisfy a two-prong test: (1) That the Defendant had the right of confrontation and cross-examination at the deposition; and (2) That the witness who gave the deposition is now unavailable to testify in open court. To show unavailability, the State has the burden of proving a good faith effort, exercising reasonable diligence, to obtain the presence of the witness at trial. In this case, more was required of the State than merely notifying Defendant's counsel of the forthcoming time and place of the out-of-state deposition. The right of confrontation and cross-examination should have been addressed, and the State was responsible for paying the reasonable personal and traveling expenses of Defendant and his counsel.

State v. Jackson, 495 S.W.2d 80 (Mo. App. K.C. 1973). In a drug sale case, the defense lawyer took the deposition of the informant who bought the drugs. The defendant was not present, nor did he waive the right to be present. The informant later died. The State read the pertinent parts of the deposition into evidence at trial. HELD: Reversed. Defendant’s 6 Amendment right to confront the witnesses against him was violated. "Both [the presence of] defendant and counsel are necessary to turn the spotlight of truth and moral suasion on a witness whose testimony may mean the difference between life and death, freedom or confinement, innocence or guilt." The 6^th Amendment right of confrontation is met by a deposition transcript if: (1) Witness died; (2) Defendant was present at the time of the witness’s testimony; and (3) Defendant had the right to cross-examine the witness.

State v. Hankins, 642 S.W.2d 606 (Mo. 1982). Important witness in a murder case lied at the preliminary hearing and said he did not see the victim get into a car with the defendant. The witness was immediately charged with perjury since this was contrary to all of his prior statements. At a subsequent deposition, the witness went back to his original story that he had seen the victim get into the car with the defendant; he admitted that he had lied at the preliminary hearing. The defendant and his attorney were present at the deposition and vigorously cross-examined the witness. The witness could not be found at the time of trial and his deposition was read into evidence. HELD: It was proper to use the evidence. The rights of confrontation were protected. The sufficient showing was made that the witness was unavailable by proof that the subpoena had been sent out and officers had tried to serve it both at the witness’s home and at his former wife’s residence, but no one knew where the witness had gone.

State v. Brookins, 478 S.W.2d 372 (Mo. 1972). Defense lawyer took the deposition of a rape victim. The prosecution offered the deposition at trial, without making any showing that a good faith effort had been made to obtain the presence of the witness. HELD: Reversed since no showing was made that the witness was unavailable.

Clemmons v. Delo, 124 F.3d 944 (8^th Cir. 1997). Defendant was on trial for the murder of a fellow prison inmate. Captain Gross was a key witness. He’d heard the defendant say, after the crime was solved, "I guess they got me." At trial, the defense is that another inmate did the murder. Captain Gross’s wife died just prior to trial, and the defense lawyer, as a courtesy, agreed that Captain Gross’s testimony could be presented by having his deposition read instead of having him present in person. The defense lawyer had been present at the deposition, but had not told the defendant about it, nor did the defendant consent to that procedure or expressly waive his right to be present. The defense lawyer did not waive the defendant’s right to be present, either. HELD: Reversible error to admit the deposition taken in violation of the defendant’s 6^th right to confront the witnesses against him.

2. The General Law on Use of Preliminary Hearing Transcripts is Analogous.

State v. Neely, 979 S.W.2d 552 (Mo. App. S.D. 1998). A witness to whom defendant had made admissions of complicity in murder testified at preliminary hearing but died of an illness before the trial (held over a year later). The prosecutor was allowed to read the testimony from the dead witness into the record. HELD: "The general rule is that the testimony of a witness given on the preliminary examination of the accused is competent on the trial where the witness died in the meantime." The confrontation clause is not violated since the defendant had the opportunity to cross-examine the witness at the preliminary hearing. It was proper to admit the preliminary hearing testimony. NOTE: The trial judge prepared a Not-in-MAI instruction to give to the jury prior to the reading of the testimony that is very good and can serve as a model way to handle the situation. See page 557. SECOND NOTE: A tape-recorded statement to police given by the key witness was also properly admitted as a prior inconsistent statement of a testifying witness under 491.074, even though the "testifying" was being done by preliminary hearing transcript.

V. PROTECTING STATE’S WITNESSES AT DEPOSITIONS.

1. Objections.

The prosecutor can object to questions that call for privileged information, Rule 56.01(b); or information that is not "reasonably calculated to lead to the discovery of admissible evidence," Rule 56.01(b); or questions that are being asked "in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent." Rule 57.03(e).

2. Certification of Question.

If a clearly improper question is asked (such as a matter covered by privilege) the prosecutor can object and instruct or suggest that the witness not answer the question without court order. If the defense wants to pursue the question, they can certify the question to the court. This means that the court reporter would make a record of the question asked, the objection made, and the refusal of the witness to answer the question. The defense can then file a motion with the court asking that the witness be ordered to answer the question. Many times the defense will give up and not bother to certify the question once they realize that your objection had merit.

As a practical matter, refusing to answer and requiring a question to be certified can be a time-consuming and expensive matter since it can result in the necessity if taking a second deposition after the court’s ruling. The prosecutor might want to discuss with the witness the possibility of answering the question with the understanding that the prosecutor will still object to having the question being asked at trial. Be aware, though, that failure to assert a privilege at a deposition can cause a privilege to be waived for later purposes.

If you know that a particular privileged issue is likely to be probed by the defense, you might consider suggesting that the witness have his or her own lawyer present at the deposition to protect the interests of the witness on that issue. After all, you represent the State, not this particular witness.

3. Protective Orders.

Rule 56.01(c). "Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) that the discovery not be had;

(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

(5) that discovery be conducted with no one present except persons designated by the court;

(6) that a deposition after being sealed be opened only by order of the court . . . "

4. Some Examples Where Prosecutor Might Want to Object and Instruct a Witness Not to Answer Without Court Order, or Otherwise Seek a Protective Order.

State ex rel. King v. Sheffield, 901 S.W.2d 343 (Mo. App. S.D. 1995). Defendant is being prosecuted for assaulting his girlfriend and resisting arrest. Defendant subpoenaed the personnel records of the officer he allegedly resisted, admittedly on a fishing expedition to try to find other disgruntled citizens who might claim the officer uses excessive force. The prosecutor filed a motion to quash the subpoenas, and the trial judge compromised by ruling that she would review the personnel files in camera. The prosecutor filed a writ of prohibition. HELD: The judge should not even review the files in camera since the Defendant has made no threshold showing that the files contain material or exculpatory evidence. The fact is "might" -- the mere possibility -- is insufficient to justify production of an officer's personnel files. Otherwise, every Defendant in Missouri would have "carte blanche to examine the personnel record of each officer who participated in the investigation or arrest."

State v. Perry, 879 S.W.2d 609 (Mo. App. E.D. 1994). Court finds Brady v. Maryland violation where prosecution failed to turn over a statement made by a State's witness. The witness, Anna Briscoe, defendant's former girlfriend, testified that defendant had confessed to her that he had committed the burglary. Defendant's defense was that he was being framed by someone else and had confessed to the police only because they beat him. Briscoe had given a statement to the police internal affairs officer that she heard the police arrest the defendant and heard the police beating him. This statement was never supplied to the defense in spite of a motion to produce. At trial, Briscoe denied ever being aware that the police had beaten defendant. REVERSED. The statement should have been disclosed.

(2) Rape Shield Matters.

State v. Poe, 708 S.W.2d 723 (Mo. App. S.D. 1986). Rape Shield statute applies to protect a victim at a deposition.

(3) Identity of Confidential Informant.

The right not to disclose the identity of a confidential informant is protected both by the common law and by Supreme Court Rule 25.10.

1. Supreme Court Rule.

Rule 25.10. Misdemeanors or Felonies – Matters Not Subject to Disclosure.

"The following matters shall not be subject to disclosure:

* * *

An informant’s identity where his identity is a prosecution secret, a failure to disclose will not infringe the constitutional rights of the defendant, and disclosure is not essential to a fair determination of the cause. Disclosure shall not be denied hereunder as to the identity of an informant to be produced at a hearing or trial."

2. Case Law.

(1) DISCOVERY OF IDENTITY OF CONFIDENTIAL INFORMANT -- DEFENDANT HAS BURDEN OF PROOF TO SHOW HIS NEED FOR DISCLOSURE OUTWEIGHS THE PRIVILEGE AGAINST DISCLOSURE OF IDENTITY OF CONFIDENTIAL INFORMANTS.

State v. Gray, 926 S.W.2d 29 (Mo. App. W.D. 1996). Undercover officer made drug buy from Defendant after Confidential Informant (CI) introduced them. The CI was present at the commission of the crime. On the day before trial, the defense filed a motion for the disclosure of the identity of the CI, who was not called as a witness at the trial. The defense presented no testimony in regard to the motion, which was denied. HELD: Generally, the rule is that communications made by informers to government officials are privileged and need not be disclosed. The privilege is "well established, and its soundness cannot be questioned. The purpose of the privilege "is to protect and further the public interest in law enforcement by encouraging citizens to communicate their knowledge of the commission of crimes to law enforcement officials." However, an exception to the rule is when disclosure of the identity of the informant is essential to enable a defendant to adequately establish a defense. Whether a defendant can have a fair trial without disclosure of the identity of an informant rests with the sound discretion of the trial court. The court should balance the relevance and importance of disclosure to the defense against the state's need for nondisclosure. In this balancing test, a crucial factor is the role played by the informant in the criminal activity. "Participation is a major factor for the trial court to consider, but participation alone does not mandate disclosure." When there is active informant participation plus other factors, such as mistaken identity, contradictory testimony, or a denial of the accusation, or when the informant is the sole witness to the crime charged, then the identity of the informant may be required for purposes of fairness. The burden of proof to overturn the public policy of nondisclosure lies with the defendant, though. In this case, Defendant failed to carry his burden of proof. Defendant should have requested a hearing upon the matter to convince the judge he had met his burden of proof.

(2) CONFIDENTIAL INFORMANT PRIVILEGE -- IDENTITY NOT DISCOVERABLE UNLESS DEFENSE SHOWS THAT DEFENDANT CANNOT HAVE A FAIR TRIAL BY WINNING BALANCING TEST OF BALANCING THE RELEVANCE AND IMPORTANCE OF THE DISCLOSURE AGAINST THE STATE'S NEED FOR NONDISCLOSURE.

State v. Coleman, 954 S.W.2d 1 (Mo. App. W.D. 1997). Defendant was convicted of selling drugs to a confidential informant. The transaction occurred in the presence of the undercover officer, who was about 45 feet away and saw the whole transaction. The officer was the only witness to testify. The trial court agreed with the State that the defense was not entitled to force the State to release the identity of the confidential informant whom it did not intend to call as a witness. HELD: The common law privilege against disclosing the identity of a confidential informant is based upon the public policy of effective law enforcement. However, concepts of fundamental fairness may create exceptions to the rule and there are some circumstances where disclosure of the identity of the informant is essential to enable the accused to adequately establish a defense. Where the informant is an active participant in the criminal activity, as opposed to merely providing information, there is a greater likelihood that fundamental fairness may require disclosure. But participation is merely one factor in a balancing test, which balances the relevance and importance of the disclosure against the State's need for nondisclosure. Factors include not only the active participation, but whether mistaken identity is alleged, contradictory testimony, and whether the informant was the sole witness to the crime. It is the burden of the Defendant to develop a record showing the need for the disclosure. In this case, although the Defendant claimed mistaken identity, he was required to show more than a bare assertion. The undercover officer identification was "positive and unequivocal, despite vigorous cross-examination." The court's refusal to require disclosure of the identity of the informant is upheld.

(3) CONFIDENTIAL INFORMANT PRIVILEGE -- IDENTITY OF CONFIDENTIAL INFORMANT NEED ONLY BE DISCLOSED WHEN ESSENTIAL TO ENABLE THE DEFENDANT TO ESTABLISH A DEFENSE.

State v. Rollie, 962 S.W.2d 412 (Mo. App. W.D. 1998). The CI introduced the undercover officer to the Defendant and was present for the first drug buy, but the officer then made several later drug buys from the Defendant without further involvement from the CI. The Defendant was only charged with the later sales occurring outside the presence of the CI. The Defendant filed a Motion to Compel Disclosure of the identity of the CI, which the trial court denied. HELD: Communications made by informants to governmental officials are generally privileged and need not be disclosed. The purpose of the privilege is to protect and further public interest in law enforcement by encouraging citizens to communicate their knowledge of the commission of crimes to law enforcement officials. An exception occurs, however, when disclosure of the identity of the CI is essential to enable a Defendant to adequately establish a defense. In balancing the importance of the disclosure to the defense, the particular circumstances of the case must be considered, including the crime charged, the possible defenses, the possible significance of the informant's testimony, and other relevant factors. A crucial factor is the role the CI played in the criminal activity. When there is active CI participation plus other factors such as mistaken identity, contradictory testimony or when the CI is the sole witness to the crime, the identity of the CI may be required to be disclosed. In this case, despite Defendant's claim that the CI had probably originally enticed him to deliver drugs to him by sexual favors, since the CI was not even present for the multiple later sales (which are the subject of the charges) disclosure of the CI's identity is NOT required. See also: State v. Hill, 890 S.W.2d 750 (Mo. App. W.D. 1995); State v. Shannon, 892 S.W.2d 761 (Mo. App. W.D. 1995); State v. McElroy, 894 S.W.2d 180 (Mo. App. S.D. 1995).

(4) Location of Confidential Surveillance Position.

United States v. Green, 670 F.2d 1148 (D.C. Cir. 1981). Where officer testified he observed an on-the-street drug transaction using binoculars, the court upheld his refusal to disclose his location. "We believe the policy justifications analogous to the well-established informer’s privilege also protect police surveillance locations from disclosure."

(5) Whether Witness is HIV Positive.

State v. Suter, 931 S.W.2d 856 (Mo. App. W.D. 1996). Defendant was being prosecuted for hiring Johnson to kill her husband. Johnson committed the murder, then confessed, received life without parole, and testified against Defendant. Defendant wanted to cross-examine Johnson about whether he was HIV positive. Trial court prohibited it. HELD: Evidence is relevant if it tends to prove or disprove a fact in issue, or if it corroborates other relevant evidence bearing on the main issue. Defendant contends fact the witness has AIDS might show his bias or motive in that he would have "nothing to lose" by implicating Defendant since he has such a short life expectancy. The court disagrees: "Evidence that Johnson is HIV positive does not demonstrate that he was biased against the defendant's interests or that he had a motive to lie to see her convicted." Affirmed.

(6) Juvenile Record.

State v. Hicklin, 969 S.W.2d 303 (Mo. App. W.D. 1998). Defendant wanted to discover and impeach a State’s witness with a juvenile record. HELD: The juvenile protection statute (211.271.3) generally protects a juvenile from impeachment by means of his juvenile record. It is allowed only as the record pertains to the existence of a possible bias or prejudice of the witness, for instance where the witness has a motive to lie because he is subject to the control of the juvenile authorities. In the present case, the defense fails to meet the test.

(7) Mental Health History of Witness.

DOCTOR-PATIENT PRIVILEGE WILL NOT NECESSARILY PREVENT DEFENSE FROM BEING ALLOWED TO EXAMINE PSYCHIATRIC HISTORY RECORDS OF A WITNESS – COURT MAY DECIDE TO PERFORM AN IN CAMERA INSPECTION.

State v. Newton, 925 S.W.2d 468 (Mo. App. E.D. 1996). Defendant being prosecuted for murder subpoenaed psychological records of key eye-witness who had history of mental illness. At a hearing, she testified that she was currently prescribed Prozac, Stelazine and Cogentin, but had only taken one pill and was not experiencing hallucinations at any of the relevant times. The witness claimed privilege and the trial court quashed the subpoena. HELD: In the clash between the witness’s right to privilege and the Defendant’s right to a fair trial, "the generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial." However, to provide protection against public disclosure of the alleged privileged material, the trial court should conduct an in camera inspection of the evidence to determine if it is relevant and material. NOTE: In State v. Newton, 963 S.W.2d 295 (Mo. App. E.D. 1997), the appellate court found that the trial court’s subsequent in camera inspection of the records showed no indication that the witness was mentally incompetent at the times in question and it was proper to find her competent to testify. Same result: State v. Middleton, 995 S.W.2d 443 (Mo. banc 1999).

(8) Whether Witness "Ever" Used Controlled Substances.

Evidence that a witness had used illegal drugs in the past is normally irrelevant unless they were used so recently that they could have affected the ability of the witness to perceive at the time of the events in question. Gamble v. Hoffman, 732 S.W.2d 890 (Mo. banc 1987); Noble v. Lansche, 735 S.W.2d 631 (Mo. App. E.D. 1987); State v. Burton, 721 S.W.2d 58 (Mo. App. W.D. 1986).

V. INCOME MADE BY EXPERT WITNESS AS AN EXPERT WITNESS MAY PROPERLY BE SUBJECT OF INQUIRY.

AN EXPERT WHO MAKES A SIGNIFICANT PART OF HER LIVING BY TESTIFYING OR WHO GENERALLY ONLY TESTIFIES FOR ONE SIDE ONLY MAY BE CROSS-EXAMINED ABOUT INCOME MADE FROM TESTIFYING IN OTHER CASES AND THE INFORMATION IS DISCOVERABLE BY SUBPOENA DUCES TECUM.

State v. Love, 963 S.W.2d 236 (Mo. App. W.D. 1997). Dr. Diane Lavitt was a witness the defense was using as a DNA expert. The State was allowed to cross-examine her about not only what she was being paid by the defense in this case, but also about what she had been paid in other recent criminal defense cases, showing that she had earned $49,000 from testifying for the defense in 6 cases from 1991 to 1993. HELD: "A number of prior cases have recognized the principle that evidence that an expert witness makes a significant part of the witness's living by testifying, or that the witness generally testifies for one side only, bears materially on the witness's credibility and hence is appropriate impeachment evidence." The court cites with approval another case where the court ordered an expert witness to honor a subpoena duces tecum requesting portions of his tax returns showing his income from being a consultant or witness during the past five years when the witness had been "less than forthcoming" in discussing income from testifying. Particularly since Lavitt had claimed not to remember how much she had been paid, it was proper to cross-examine her with the bills themselves.

VI. DISCOVERY DOES NOT START IN CRIMINAL CASES UNTIL AFTER THE FILING OF THE INFORMATION OR INDICTMENT.

VII. "DEPOSITION" OF CHILD VICTIM UNDER 491.675.

Deposition of Child Victim - Section 491.675 to 491.693 provides for the deposition of a child (under 17) victim of offenses under Chapter 565, 566, or 568 RSMo. NOTE: Judge Elwood Thomas noted that calling this a "deposition" may have been a poor choice of words since it is more like trial testimony.