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LawTalk
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 37682
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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Mother claims Father shoved her. Calls 911. Father arrested

Customer Question

Mother claims Father shoved her. Calls 911. Father arrested and charged with spousal abuse. Father says did not shove. 17 year old daughter also in room sees that there is no contact. Daughter willing to testify thru a deposition that nothing happened. Father lawyer says not necessary, can use that testimony in the divorce part of proceeding. Should the deposition have been taken or is the lawyer correct that it is not needed?
Submitted: 4 years ago.
Category: Family Law
Expert:  LawTalk replied 4 years ago.
Good morning,

I'm Doug, and I'm very sorry to hear of your situation family's situation. My goal is to provide you with excellent service today.

Depositions are only necessary for the preservation of testimony, and when you have a friendly witness---one on your side, as an attorney you generally do not take their deposition. In this case your sister is a favorable witness for your father and taking her deposition would give the prosecutor/the other side two opportunities at questioning her under oath---one in the deposition, and a second at a trial if that comes to pass.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug
Customer: replied 4 years ago.

I understand what you are saying but "friendly" witness could be temporary. The couple is separated and all 3 children live at the home and the daughter potentially could change her testimony at the trial scheduled in a few months. The Mother is manipulating the children but the daughter so far has stood strong. The fear may be that she will change her testimony. If she did change her testimony and nothing has been executed via deposition, wouldn't that hurt the Father's case with no prior testimony on record?

Expert:  LawTalk replied 4 years ago.

Good morning,

Yes, that is a possibility, and it that is the case then her testimony would want to be preserved at least through an affidavit, if not actual deposition testimony. In an affidavit, there is no cross examination of the witness either, and the affidavit can be used to cross examine the witness if their change their story.

Another possible issue, and you don't say whether the lawyer is representing the father for the divorce or the criminal charge---but if only for the divorce, the divorce attorney does not want to become involved in defending the criminal claim, and would therefor balk at any demand to take a deposition specifically directed at the defense of the criminal charges---when it would have virtually no impact on anything in the divorce.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug

Customer: replied 4 years ago.

The lawyer at this time is representing both the divorce and the criminal charge.

Expert:  LawTalk replied 4 years ago.
That is extremely unusual for an attorney to handle criminal defense and family law.

Based on what you say, if I were your father, I would demand that my attorney either take a deposition of the sister or at a bare minimum get a satisfactory affidavit from them, under oath to preserve the evidence---or at leas to prevent her from changing her testimony.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug

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