Changing Deposition Testimony
At a deposition, the witness’s testimony is transcribed by a court reporter. The court reporter ultimately certifies that the transcript was duly sworn and is a true record of the testimony given by the witness, and then provides a sealed copy of the transcript to the deposing attorney for use at trial. However, court reporters sometimes make mistakes, and witness’s sometimes make misstatements that they later wish to correct. To allow for this, the witness is given a copy of the deposition transcript before it is finalized and sealed, and has thirty days to review and sign the transcript. In so doing, the witness may make any change in form or substance to the transcript, along with the reasons for making the change. CR 30(e).
A primary purpose of taking depositions is to secure testimony from the witness under oath so they cannot change their story later. In theory, allowing the witness to change the transcript after the fact would seem to undermine this purpose. However, when a witness’s deposition testimony is changed, the final transcript includes both the original uncorrected transcription and the corrected transcription with a statement of the witness’s reasons for making each change. At trial, if the witness gives testimony that contradicts their deposition testimony, an attorney can impeach the witness with either the original transcript or the corrected transcript. The opposing attorney can then cross-examine the witness with the other version of the transcript if they so choose. The jury is thus presented with both versions of the transcript along with the reasons that changes to the transcript were made. The jury then decides whether to believe the original transcript or the transcript that was revised by the witness. The more plausible the witness’s explanation for making the change, the more likely the jury is to believe the changed version is more fair and accurate than the original. If the witness does not give a plausible reason, or attempts to abuse the process by simply changing their testimony under oath after the fact, this procedure allows opposing counsel to prove to the jury that the original transcript is the more trustworthy one.