S 660.10 Examination of witnesses conditionally; in general. After a defendant has been arraigned upon an accusatory instrument, and under circumstances prescribed in this article, a criminal court may, upon application of either the people or a defendant, order that a witness or prospective witness in the action be examined conditionally under oath in order that such testimony may be received into evidence at subsequent proceedings in or related to the action. S 660.20 Examination of witnesses conditionally; grounds for order. An order directing examination of a witness conditionally must be based upon the ground that there is reasonable cause to believe that such witness: 1. Possesses information material to the criminal action or proceeding in issue; and 2. Will not be amenable or responsive to legal process or available as a witness at a time when his testimony will be sought, either because he is: (a) About to leave the state and not return for a substantial period of time; or (b) Physically ill or incapacited. S 660.30 Examination of witnesses conditionally; when and to what courts application may be made. 1. An application to examine a witness conditionally may be made at any time after the defendant has been arraigned upon an accusatory instrument and before termination of the action, or of a proceeding therein or related thereto, in which the witness`s testimony is sought. 2. Such application must be made to and determined by the following courts under the indicated circumstances: (a) If the action is pending in a local criminal court as a result of an accusatory instrument filed therewith, the application must be made to and determined by such local criminal court; (b) If the defendant has been held by a local criminal court for the action of a grand jury on the basis of a felony complaint, or if an indictment has been filed against him, the application must be made to and determined by the superior court by which the grand jury was or is to be impaneled or in which the indictment is pending. If the superior court by which the grand jury is to be impaneled is the supreme court, the motion may, in the alternative, be made in the county court of the county in which the action is pending. S 660.40 Examination of witnesses conditionally; application and notice. 1. An application to examine a witness conditionally must be made in writing, must be subscribed and sworn to, and must contain: (a) The title of the action, the offense or offenses charged, the nature and status of the action, and the name and residential address of the witness sought to be examined; and (b) A statement that there is reasonable cause to believe that grounds for such an examination, as specified in section 660.20, exist, together with allegations of fact supporting such statement. Such allegations of fact may be those of the applicant, or those of another person in an accompanying deposition, or of both. They may be based either upon personal knowledge of the deponent or upon information and belief, provided that in the latter event the sources of such information and the grounds of such belief are stated. 2. The application may also contain a request that the examination, in addition to its being recorded in the same manner as would be required were the witness testifying at trial, also be recorded by videotape or other photographic method approved by and subject to standards and administrative policies promulgated pursuant to section twenty-eight of article six of the constitution. 3. A copy of the application, with reasonable notice and opportunity to be heard, must be served upon the other party to the action. If the defendant is the applicant, such service must be upon the district attorney. If the people are the applicant, such service must be upon the defendant and upon his attorney if any. The respondent party may file and serve a sworn written answer to the application. S 660.50 Examination of witnesses conditionally; determination of application. 1. Before ruling upon the application, the court may, in addition to examining the papers and hearing oral argument, make any inquiry it deems appropriate for the purpose of making findings of fact essential to the determination. For such purpose, it may examine witnesses, under oath or otherwise, subpoena or call witnesses and authorize the attorneys for the parties to do so. 2. If the court is satisfied that grounds for the application exist, it must order an examination of the witness conditionally at a designated time and place. Such examination must be conducted by the same court; except that, if it is to be held in another county, it may be conducted by a designated superior court of such other county. 3. The court must order that the examination be recorded in the same manner as would be required were the witness testifying at trial, and the court may, in addition, order that the examination also be recorded by videotape or other photographic method approved by and subject to standards and administrative policies promulgated pursuant to section twenty-eight of article six of the constitution. 4. Upon ordering the examination, the court must direct the party securing the order of examination to serve a copy of the order upon the respondent party and, if a defendant be such, upon his attorney also, and must either issue a subpoena for the witness` attendance thereat or authorize the applicant party`s attorney to do so. S 660.60 Examination of witnesses conditionally; the examination proceeding. 1. The examination proceeding must be conducted in the same manner as would be required were the witness testifying at a trial, and must be recorded in such fashion as the court has directed pursuant to subdivision three of section 660.50 of this chapter. The witness must testify under oath. The applicant party must first examine the witness and the respondent party may then cross-examine him, with each party entitled to register objections and to receive rulings of the court thereon. 2. Upon conclusion of the examination, a transcript and any videotape or photographic recording thereof must be certified and filed with the court which ordered the examination. Top of Page
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