7/19/2016 | by Heather Duncan, Esq. and Suzanne Smigliani, Esq.

In last month’s post we outlined the Top Five Tips for Using Deposition Testimony to Impeach a Witness at Trial.  Below is our response to your questions on using deposition testimony from an unrelated action to impeach a witness.

First, a quick review on obtaining deposition testimony from a prior unrelated action...

As we all know from earlier editions of the Network News a deposition transcript and the audio or video of the deposition testimony are not public records; there are limitations on a third party’s right to obtain a certified copy from the court reporter.

Under the California Code of Civil Procedure (CCP) §2025.570, a third party may obtain a copy of deposition testimony only after any of the following has occurred:

1. A stipulation of all parties to the action in which the deposition was taken, and the deponent; or
2. A court order; or
3. A 30-day notice under CCP §2025.570 sent to all parties and the deponent that does not result in a protective order.

After you have obtained a prior deposition transcript, the rules on using it for impeachment at trial are governed by the California Evidence Code (Evid C). The testimony is treated as a prior inconsistent statement and may be admitted into evidence as an exception to the hearsay rule because it safeguards against changes in testimony. (Evid C §1235)

Before the testimony can be introduced you must satisfy the following requirements:

The impeaching statement must be inconsistent with some part of either the express or implied testimony of the witness; and either

1. The witness while testifying was given the opportunity to explain or deny making the prior inconsistent statement; or  
2. The witness has not been excused from giving further testimony in the action.

(Evid C §770)

Additionally, if the impeaching statement is a writing, it must be authenticated. (Evid C §1401) With a deposition transcript this requirement is met through the reporter certification.

Once you have satisfied the above requirements, if you decide to impeach the witness directly with the inconsistent deposition testimony, remember that you must give the witness an opportunity to explain or deny the prior testimony. (Evid C §770)

At this point, you can refer back to the excellent tips provided in our June 2016 Network News. 

Suzanne Smigliani is a partner at the law firm of Rheinheimer & Smigliani, APC.  Suzanne has been rated AV-Preeminent by Martindale-Hubble and has been consistently named one of San Diego’s Top Lawyers.  Her practice focuses primarily on the defense of real estate professionals and business owners in the areas of professional liability, employment, and general civil litigation.  Suzanne graduated from UCLA and the University of San Diego School of Law and is licensed to practice by the California State Bar.  As an avid hockey fan, when she is not in court Suzanne can be found at any number of ice rinks throughout Southern California.  She can be reached at (619) 503-1437 or via e-mail at sls@RSDapc.com.