A deposition is sworn testimony given by a witness outside of court before trial. In California, depositions may be taped and video-recorded to be played back during trial under California Civil Code 2025.220 et seq. Depositions are used as a tool during discovery and as evidence during trial.
Depositions are a discovery tool to obtain information and determine what kind of testimony a witness will give at trial. The witness's testimony may also be used during trial to impeach a witnesses or to offer evidence. Depositions are conducted during the discovery phase of litigation; that is, before trial. Depositions are conducted outside of court, in the absence of a judge or jury. Typically only the witness being deposed, the attorney for each party, and the court reporter are in the room during a deposition. Before the deposition begins, the witness is placed under oath to tell the truth.
In California, witnesses may be recorded and videotaped during their depositions, and clips from the depositions can be played for the judge or jury during trials. Clips can be offered at any time during the trial and are most commonly used during opening statements or closing arguments, or to introduce evidence.
Many lawyers, such as those at the Huron Law Group, believe video depositions create a communicative advantage during a trial. As the Huron Law Group explains, a video recording gives jurors something to hear and see. Reading testimony straight from the written record taken at a deposition does not convey the witness's body language, tone of voice or facial expression—additional elements that can completely change the meaning of words.
A party wishing to conduct a video deposition must give notice to all parties, including the witness to be deposed and the court reporter in charge of recording the deposition. Additionally, the party operating the video camera must be a neutral third party who has no financial stake or other interest in the corresponding litigation. The operator must not be a relative or employee of any party involved: the witness, the attorneys, of any party to the litigation.
Videotaped depositions can be very costly.