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National Crime Victim Law Institute

Daenzer v. Mun. Ct. of the City of Missoula, --- P.3d ---, No. OP 20-0209, 2020 WL 2847458 (Mont. June 2, 2020)

June 25, 2020

Defendant, who was charged with assaulting his girlfriend, among other offenses, sought an order permitting him to conduct a pretrial interview of the victim, who did not wish to participate in such an interview. The statute invoked by defendant in connection with his motion was a provision governing the use of compelled depositions in connection with criminal proceedings. The government opposed defendant’s motion, noting that the victim would be available at trial for cross-examination, and the municipal court denied the motion, finding that denial of the pretrial deposition would not result in a “failure of justice.” Defendant filed a petition for a writ of supervisory control with the Montana Supreme Court challenging the municipal court’s decision. The Montana Supreme Court declined to impose a requirement of “routine depositions,” observing that pretrial interviews of witnesses are distinguishable from the limited use of depositions in connection with criminal trials and that defendant was not “asserting a right to compel a pretrial interview because pretrial interviews are not provided for by any statute or constitutional right.” The Montana Supreme Court further clarified that “depositions in criminal cases are provided for by statute and are designed to protect a defendant’s trial rights, not enhance pretrial discovery.” Because the municipal court did not proceed under a mistake of law that caused a gross injustice, and because defendant had access to police reports concerning the incident and the victim would testify at trial subject to cross-examination, the municipal court’s order denying defendant’s motion to depose the victim pretrial was affirmed.