Many people have heard of depositions but are unfamiliar with what they involve, why they happen, and what is expected of them when subpoenaed for one. This article addresses the purpose of depositions in Indiana criminal cases. For more on the legal issues discussed here, see our Indiana criminal defense overview and What is Discovery in Criminal Law? guide.
__What is a Deposition?__
In most Indiana counties, a deposition is the primary mechanism for obtaining a witness's sworn testimony before trial in a form admissible for impeachment purposes. A formal deposition involves both attorneys, a court reporter who transcribes and records the proceeding, and the witness under oath and subject to perjury penalties. Some counties permit "taped statements" — depositions conducted without a court reporter — but this article focuses on formal depositions in state criminal cases, where the process is most developed. Depositions are far more limited at the federal level.
Others may be present but cannot speak — victim advocates, detectives, parents in juvenile cases, civil attorneys, or other interested third parties.
__How Do Depositions Work?__
The questioning attorney asks the witness a series of questions while the witness is under oath. The rules of evidence are somewhat relaxed; the standard for permissible questions is whether they are likely to lead to discoverable evidence. Either party may object on the record. When an objection is raised, the witness is typically instructed to answer anyway, with the objection preserved for a later ruling by a judge. On rare occasions, a party may ask to certify a question to a judge before proceeding, which can pause the deposition until the court rules.
__Why Do Depositions Matter?__
Depositions serve two core purposes: they reveal what a witness would say at trial, and they lock that testimony in for impeachment if the witness later contradicts themselves. For that reason, witnesses should answer truthfully, take time to think before responding, and avoid guessing. Saying "I don't know" or "to the best of my recollection" is always better than speculating. Witnesses who need clarification or a break can typically request one — this is usually established by agreement before the deposition begins.
The tone of a deposition depends on the questioner, the subject matter, and the witness's demeanor. In high-stakes cases such as sex offenses, questioning can be aggressive. The best approach for any witness is to answer carefully, honestly, and without becoming combative.
__Why Depose a Witness That Will Appear at Trial Anyway?__
Because preparation and predictability matter. Depositions give both sides a clearer picture of where the case stands — what a witness is likely to say, how credible they appear, and whether they will hold up under cross-examination. They narrow the issues in dispute and often lead to earlier resolutions, as each side gains a more honest assessment of its own strengths and weaknesses. In our experience, forgoing depositions introduces too much uncertainty and risk.
It is worth noting that depositions carry costs — court reporter fees and transcription expenses add up. It may be prudent to limit depositions to essential witnesses such as victims and eyewitnesses, which controls cost while keeping the focus where it matters most.
__When Can Depositions Work Against a Defendant?__
There are circumstances where depositions create risk. If a witness is deposed but later deemed "unavailable" at trial, their deposition testimony may be admitted in their absence. Depositions can also prompt a prosecutor to engage more seriously with a case they had been handling passively, or lead to plea offers being withdrawn or made less favorable. These are risks every defendant should discuss with their attorney before deciding how to proceed.
__Contact Mo AlMahareeq Law__
Mo will be able to provide you guidance on when depositions are or are not in the client's best interest. When used appropriately, they can be a great tool for resolving criminal cases. If you or a loved one are facing criminal charges in Indiana, give Mo a call today.
Available 24/7 at mo@moalmahareeqlaw.com or by calling (347) 889-4944.
Written by
Moawia K. AlMahareeq