SB 766

Under current law, if a witness in a criminal proceeding may not be able to

attend the trial or hearing, the court may take the witness's testimony by deposition

if the testimony is material and necessary in order to prevent a failure of justice. The

deposition testimony may be used at trial if the witness is dead, the witness is

out-of-state, the witness is unable to attend because of sickness, or the subpoenaed

witness does not attend.

Under this bill, a court may take a witness's testimony by deposition if it

appears that the witness is at risk of being intimidated and therefore may not fully

cooperate at trial. Under the bill, the deposition testimony may be used at trial if the

court finds, by clear and convincing evidence, that the witness may have been

intimidated and is at risk of not fully cooperating at trial. When making the finding,

the court may consider the safety of the witness, the risk that the witness was

intimidated, the nature of the offense being tried, if the witness has changed his or

her testimony, and the nature of the defendant.