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Motion to Take Deposition

Motion to Take Deposition

150 150 Cohen, Bradshaw, Rothstein & Klein

DEFENDANT, by and through the undersigned attorney and pursuant to Rule 3.220(h)(1)(D), Washington DC Rules of Criminal Procedure, hereby moves this Honorable Court to enter an order allowing defense counsel to take the deposition of Anonymous Witness, the alleged complainant at McDonald’s, 253 State Street East, Washington DC, Washington DC 32202.  For good cause, Defendant would state the following:

  1. Defendant is charged in the instant case with one count of trespass, a violation of §810.09, Washington DC Statutes.
  2. The case arose on April 17, 2013 from an alleged refusal by Defendant to leave the premises of a McDonald’s restaurant located in downtown Washington DC.  In the Arrest and Booking Report, Officer F.A. Smith (#6464) of the Washington DC Sheriff’s Office asserts that Defendant was asked to leave by restaurant manager Anonymous Witness, and then refused to leave. Officer Smith further alleges that Defendant was being refused service and that Defendant was no longer allowed on the premises.
  3. On June 20, 2013, the undersigned contacted Anonymous Witness at the McDonald’s restaurant where the alleged incident occurred.  Ms. Witness advised that she never requested that Defendant leave the premises or that Officer Smith escort Defendant from the property.
  4. For reasons unknown to the undersigned, Ms. Witness could not elaborate further as to how Officer Smith obtained his purported authority to advise Defendant to leave the premises.
  5. Ms. Witness advised that further inquiries should be directed to regional supervisors or managers.  Upon information and belief, these regional managers or supervisors have no personal knowledge of the alleged incident on April 17, 2013.
  6. The undersigned believes that Ms. Witness has additional information that conflicts with the allegations of Officer Smith and that may exonerate Defendant with respect to the present charges.  However, the undersigned has no further avenue to obtain this information, given Ms. Witness’s position that further inquiries should be directed regional management.
  7. The conflicting version of events presented by State witnesses, and the inability or unwillingness of one of those witnesses to elaborate further, renders the issues and witness testimony in this case unusually complex.  Moreover, the statements by Ms. Witness raise complex legal issues as to whether Officer Smith had the legal authority to order Defendant to leave the McDonald’s restaurant on the date in question.
  8. Ms. Witness is the only witness who can shed light on these legal and factual issues.
  9. The undersigned has been diligent in the preparation of the instant case and sought out all other opportunities short of deposition to discover the above-described information.
  10. The underlying principles supporting pretrial discovery in a criminal case are fairness and the prevention of surprise by either the prosecution or the defense by facilitating a truthful fact-finding process.  State v. Coney, 294 So. 2d 82 (Fla. 1973); Kilpatrick v. State, 376 So. 2d 386 (Fla. 1979). A deposition in the instant case would support the principles of fairness, truthful fact-finding, and prevention of surprise.
  11. The consequences to Defendant of not having this information in advance of trial would be severely prejudicial at trial.  The undersigned does not anticipate that the proposed deposition would exceed fifteen (15) minutes.

WHEREFORE, Defendant requests this Honorable Court to enter an order permitting defense counsel take the above-described deposition.