Federal Committee to Weigh Permitting Depositions in Criminal Cases

Federal criminal rules experts may soon begin studying something the federal criminal system has resisted for more than 80 years: allow parties to take pretrial depositions in criminal cases. A proposal to do just that landed in front of the Administrative Office of the U.S. Courts’s criminal rules advisory committee last year, and now there are indications that the committee will in fact commence work in this area.

According to a summary of the criminal rules committee’s Nov. 6, 2025, meeting, which was included in meeting materials published in advance of its May 7, 2026, meeting, the committee is considering revisions to Federal Rule of Criminal Procedure 15 to permit depositions in criminal cases. The issue has been placed on the advisory committee’s study agenda. Meeting notes indicate that a subcommittee will be formed to study the issue, calling the planned work “a massive undertaking.”

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Rule 15 Revisions

Rule 15 permits depositions in criminal cases only for the limited purpose of preserving testimony for trial.

One leading reform proposal, advanced by Akerman partners at Washington, D.C., offices, in a letter to the committee, would revise Rule 15 to permit up to five pretrial depositions in federal criminal cases. Deposition requests would be subject to judicial approval, with judges retaining discretion to permit more in exceptional circumstances. The amendment would not create an entitlement; courts would set conditions and impose protective orders.

Roughly 20 states permit some form of pretrial deposition in criminal cases, ranging from broad rights of access to limited circumstances requiring court approval. The states most often cited as having robust deposition practice include Florida (under Rule 3.220 of the Florida Rules of Criminal Procedure, discovery depositions are available as a matter of right in felony cases), Missouri, Indiana, Iowa, Vermont, and New Hampshire (each providing discovery depositions in felony cases). More limited deposition rights exist in Arizona, North Dakota, Nebraska, New Mexico, Texas, and Maine.

Defense lawyers with experience in these states have written supporting comments to the advisory committee on criminal rules. Miami defense attorney David O. Markus, in a September 13, 2025, letter to the committee, wrote that depositions in criminal cases promote the same positive benefits as in civil cases: they promote pretrial resolutions because both the prosecutor and defense counsel know what key witnesses will say at trial. Depositions, he contended, advance the truth-seeking function of criminal proceedings. “The current federal practice creates the perverse situation where parties in a routine civil case—with only money at stake—can depose key witnesses, but a criminal defendant facing years in prison cannot,” Markus wrote. “That result is not just illogical, it is unjust.”

Seattle defense attorney John Cline made a similar argument in a Sept. 2, 2025, letter to the committee that it is unfair for prosecutors to obtain statements from witnesses, either through statements to investigators or through grand jury subpoenas, but defense counsel have no right of pretrial access to witnesses against their clients.

Cline wrote: “The lack of defense access to witnesses thus leads to uninformed decisions whether to plead guilty or go to trial; to trials at which prosecution witnesses cannot be cross-examined effectively because defense counsel do not want to ask questions to which they do not know the witness’ answer; and to decisions not to call potentially exculpatory witnesses in the defense case, because the defense cannot be confident the witness will testify favorably.”

The National Association of Criminal Defense Lawyers submitted a March 2, 2026, letter supporting depositions in criminal matters. Depositions work successfully in state criminal courts and federal civil cases, the letter argues, and the practice should extend to federal criminal cases where defendants face the loss of life, liberty, and property. Prosecutors can compel witnesses to speak to them or to a grand jury; defense counsel cannot. NACDL warned that this power imbalance can produce unfair trials and even wrongful convictions. The endorsement is consistent with the organization’s longstanding criminal discovery reform work.

Arguments For and Against Amending Rule 15

Depositions in criminal cases would arguably:

• Promote more accurate fact-finding. Defense lawyers argue that depositions reveal weaknesses in police reports and interview summaries. Discovery depositions allow both sides to test the evidence before it reaches the jury.
• Allow better-informed plea decisions. Approximately 97% of federal criminal cases end in guilty pleas. Defense counsel currently advise clients on plea offers based on government summaries of expected testimony. Depositions would let defendants weigh the strength of the prosecution’s case against the consequences of going to trial.
• Come with workable safeguards. Markus argued that concerns about witness safety in Florida have proved overstated, with protective orders handling the rare problematic case.

On the other hand, depositions in criminal cases might:

• Lead to witness intimidation. Federal criminal cases include violent crimes, organized crime, narcotics conspiracies, and gang prosecutions in which witnesses face real risks. Some worry that depositions create opportunities for intimidation, coercion, and tampering. Existing Rule 15 already excuses defendants from foreign depositions in narrow circumstances, reflecting longstanding concern about witness security.
• Cause trial delays and additional expense. Adding deposition practice would extend pretrial timelines and impose costs for court reporters, transcripts, and counsel time. Federal Speedy Trial Act calculations would need to accommodate a new layer of pretrial activity.
• Raise Confrontation Clause issues. The Sixth Amendment guarantees defendants the right to confront witnesses against them. Rule changes will need to address how deposition testimony may be used at trial without running afoul of Sixth Amendment protections.
• Be unnecessary in view of existing protections. Critics argue that current Rule 16 discovery, Brady and Giglio disclosures, Jencks Act materials, and grand jury transcripts already give defense counsel adequate pretrial access to the prosecution’s case.

What Comes Next

Rule changes proceed through a multi-step process: study by the Advisory Committee on Criminal Rules, approval by the Standing Committee on Rules of Practice and Procedure and the Judicial Conference, transmission to the Supreme Court, and a congressional review period. The full process typically takes several years.

For litigators in federal criminal courts, the takeaway is that the foundation has been laid for a serious conversation about creating a more robust pretrial discovery process in criminal cases. Wider availability of depositions will certainly be on the table. As recent appellate rulings underscore, depositions are central to civil litigation for many of the same reasons they are desired by criminal defense attorneys. Whether depositions ultimately become a fixture of federal criminal practice remains an open question – but for the first time in decades, the issue is being seriously considered.