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State v. Driker

Decided: December 5, 1984.

STATE OF NEW JERSEY, PLAINTIFF,
v.
OLEG DRIKER, DEFENDANT



Menza, J.s.c.

Menza

OPINION

The defendant is charged with robbery and burglary. The State moves to introduce into evidence, in lieu of actual testimony, the videotaped deposition of the victim because the witness is ill and unable to appear in person at the trial. The defendant objects to the introduction of the videotape contending that R. 3:13-2 does not specifically provide for the use of a videotaped deposition in a criminal trial.

R. 3:13-2, which provides for the use of depositions in a criminal trial, states:

(a) When and How Taken. If it appears to the judge of the court in which the indictment or accusation is pending, that a material witness may be unable to attend or may be prevented from attending the trial of the indictment or accusation, or any hearing in connection therewith, the court, to prevent injustice, may upon motion and notice to the parties order that testimony of such witness be taken orally by deposition as provided in civil actions. . . .

(b) Use. At the trial or upon any hearing, a part or all of a deposition, so far as admissible under the rules of evidence, may be used if the court finds that the appearance of the witness cannot be obtained because he is dead or is unable to attend or testify because of age, sickness, infirmity or imprisonment, or is out of this State, or because the party offering the deposition has been unable to procure his attendance by subpoena. [Emphasis supplied].

R. 3:13-2 specifically refers to the civil rules governing the method of taking depositions. R. 4:14-9, which governs the method of taking depositions in civil actions, provides:

Videotaped depositions may be taken and used in accordance with the applicable provisions of these discovery rules. . . .

(e) Use. Videotaped depositions may be used at trial in accordance with R. 4:16-1.

R. 4:16-1 states:

At the trial or upon hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying. . . .

It is clear that Rules 3:13-2, 4:14-9 and 4:16-1 permit the use of a videotaped ...


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