Guam § 70 - Depositions Allowed Generally; In Special Circum-

§ 70. Depositions Allowed Generally; In Special Circum-

stances.

Whenever due to special circumstances of the case it is in the

interest of justice that any person be ordered to appear at a

specified time and place to be examined under oath, the court may,

upon noticed motion of any party, order such person to appear so

that his testimony may be taken by deposition and further order

that any designated book, paper, document, record, recording or

other material not privileged, be produced at the same time and

place.

COURT DECISIONS: SUPERIOR COURT, 1978. A deposition is

warranted in a criminal matter in the instance of a witness who will be out

of the jurisdiction and beyond the subpoena power of the court.

The taking of a deposition by the prosecution always raises the

danger that the defendant will be denied his right to confront adverse

witnesses; therefore, before the court will order such a deposition, the

prosecution will first be required to demonstrate that all good faith efforts

have been made to procure the attendance of such witness for trial. People

v. Pangelinan, Sup. Ct. Cr. #101F-78. (Order, 08/24/78; Abbate, P.J.)

NOTE: Section 70.50 is based on former Rule 15(a) and former §§ 1335-

1339. However, former Rule 15(a) only permitted a deposition to be taken

on the application of the defendant; not the government. Both former Rule

15(a) and former §§ 1335 and 1336 (which did permit the government to

take depositions) permitted a deposition to be taken only for the purpose

of preserving testimony. Section 70.50 is not so limited. Either party may,

upon a proper showing, be permitted to take a deposition and such

deposition and such deposition may be taken for general discovery

purposes. However, neither party has a right to take a deposition. This

procedure is available only where needed. The greatly broadened rights to

discovery provided by Article 1 (commencing with § 70.10) would seem

to obviate the need for a deposition in most cases. See also § 50.38

(indicted defendant's right to a transcript of grand jury proceedings).

However, in some cases a deposition may be needed either to preserve

testimony or to obtain further discovery. Section 70.50 permits the taking

of a deposition in either case subject to the control of the court and other

limitations provided in this article. See §§ 70.55 (right of defendant to be

present); 70.65 (defendant may not be compelled to testify). These changes

are based on policies reflected in proposed Federal Rule 15 and ABA,

Project on Standards for Criminal Justice Discovery and Procedure Before

Trial § 2.5, at 86-88 (Approved draft 1970) (depositions). See also 18

U.S.C.A. § 3503(1970). Since the procedure provided here is a simple

notice motion procedure much of the detail provided in a simple noticed

motion procedure much of the detail provided in former §§ 1337-1339 is

now covered by general provisions. See §§ 1.25 (time), 1.27 (motions),

1.29 (service and filing of papers).