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What is discovery in a civil lawsuit or criminal defense trial?

There are some aspects of court cases that are the same regardless of the type. Civil and criminal cases, for example, are presented to New Hampshire courts in similar manners. Evidence is presented to the presiding judge or to a jury, and a decision is made resolving the case.

Because legal remedies are based on evidence, there are times when witness testimony is a crucial aspect of both defendant and plaintiff presentations.

Parties in court cases generally have a right to conduct what is called discovery. This term refers to the formal investigation of the facts known to the other parties. Answers are obtained by asking specific questions in written form. This document is served on the parties from whom answers are sought, and the answers must be divulged to the requestor and the court within a certain time-frame.

Access to this information allows both sides to prepare their cases with an understanding of potential evidence that might otherwise be unknown to them. Sometimes, once additional facts are understood, settlement or plea bargaining between or among the parties is an option.

When a witness is questioned in person outside of the courtroom, it's called a deposition. It usually happens at a law office, and it takes as long as necessary to satisfy everyone. The purposes for doing this are to ascertain what that witness actually knows and preserve the information on the record. The questions and answers are recorded and certified by a court reporter, notary public or justice authorized to take depositions. This process allows for a more fair trial, with fewer surprises for either side. Witnesses may not ask anything; they will only provide answers under oath.

Every case involves some type of discovery, but all don't require depositions. The defendant in a criminal case is not permitted to give testimony via deposition, nor can a victim or witness under 16 years of age be deposed. The court will evaluate the complexity of the case issues and the reason for a deposition request to determine whether or not a deposition is necessary in a criminal proceeding.

Source: New Hampshire Title LIII Proceedings in Court, "Chapter 517 Depositions," accessed April. 16, 2015

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