Wednesday, May 9, 2012

Testimony Of Witness That Dies Before Completion Of Deposition Is Admissible, Regardless Of Whether Cross Examination Occurred

In The Bank of Montreal v. Estate of Antoine (4D10-760), Antoine embezzled more than $13 million in bank funds. After he was arrested, pled guilty, and sentenced to serve his prison sentence in federal prison, the bank sued Antoine and his wife. As part of the suit, the bank sought to place an equitable lien on a residence allegedly purchased with the stolen funds. The bank took Antoine's deposition and Antoine admitted that the residence was purchased with stolen funds. Unfortunately, during the deposition Antoine experienced chest pains which prevented his co-defendant wife from cross examining him. A few days after the deposition was postponed, Antoine died.

During trial, Antoine's wife sought to exclude his testimony because she was not able to question him. The trial court agreed and excluded the deposition from trial. The Fourth District analyzed analogous caselaw from around the country and held that the partial deposition was improperly excluded. Deposition of an unavailable witness is generally not excluded if the objecting party had a chance to cross examine the witness at the deposition. See Fla. Stat. § 90.804(2)(a). Antoine's wife did not have the opportunity to question Antoine, however, "Florida Rule of Civil Procedure 1.330(a) provides that:

[a]t the trial...any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence applied as though the witness were then present and testifying in accordance with any of the following provisions:....(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead . .. .

[emphasis supplied]. "Hearsay which is inadmissible because it does not satisfy the provisions of the former testimony rule will still be admissible if it satisfies the provisions of rule 1.330."

The court then discussed the applicable authorities from around the country which "establish that it is appropriate for us to consider the value that the wife’s cross-examination of Antoine would have provided to her defense." In this case, the court determined the cross examination would not have elicited anything of importance. Therefore, the deposition should have been admitted.


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