Deposition by Colorado Notary, 1865
Colorado notary law CRS 12-55-110(1)(d) authorizes a notary to take depositions, affidavits, verifications, and other sworn testimony or statements. While many notaries take affidavits, often one or two page documents, the procedure for taking a deposition is not described in Colorado notary law.
Deposition procedures are not taught in basic Colorado notary training. It is an advanced topic. Depositions are usually taken by trained court reporters, who record the witness testimony using stenography (machine shorthand), or by audio or video recorder.
The recorded testimony is then transcribed into a written document and proof read by the witness for accuracy. Then the witness makes an oath or affirmation that the transcript of testimony is true and correct, and a notary certificate is attached, often by a court reporter. Colorado notary law does not describe the form for the notary certificate that is attached to a deposition.
A notary may take a deposition, but must acquire the legal knowledge to follow the correct procedure. The Colorado Rules of Civil Procedure (CRCP) and the Federal Rules of Civil Procedure (FRCP) define the rules for depositions.
The witness will receive a court order (subpoena) or a Notice of Deposition. The witness may be required to give oral testimony, answer prepared written questions, or produce originals or copies of records or documents.
If a court trial is scheduled in another state (trial state), outside of Colorado, but the witness is in Colorado (deposition state), the procedure for serving a deposition notice on the witness is described in the Interstate Depositions and Discovery Act, adopted in Colorado in 2008.
The new law was added as CRS 13-90.5. The trial state court sends the subpoena to the court clerk in the deposition state. The court clerk then issues a subpoena under the laws and rules of the deposition state.
Under the law, CRS 13-90.5-102 (5), “Subpoena” means a document, however denominated, issued under authority of a court of record requiring a person to:
(a) Attend and give testimony at a deposition;
(b) Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or
(c) Permit inspection of premises under the control of the person.
Medical records custodians may receive frequent deposition notices or subpoenas to produce medical records of patients, to be used in litigation. There may be a few written questions for the records custodian, to testify that the records are true and correct, and then copies of the records are attached to the deposition as an exhibit.
With modern technology, a notary may be able to record the testimony of the witness using a digital voice recorder (DVR) or video recorder, and transcribe a short deposition using transcription software.
Sand Creek Massacre
One famous case of a Colorado notary taking a deposition occurred in Denver, Colorado Territory, in 1865, after the Sand Creek Massacre of November 1864. The U.S. Congress conducted an investigation of the massacre, and sent written deposition questions for the witnesses, including Colonel John M. Chivington.
A Denver notary, Alexander W. Atkins, read the questions to the witnesses and recorded their testimony. Eugene Weston, a notary from Pueblo County, served in Company G, 3rd Colorado Cavalry, at the massacre.
Testimony of Colonel J. M. Chivington, April 26, 1865
Interrogatories propounded to John M. Chivington by the Joint Committee on the Conduct of the War, and answers thereto given by said Chivington reduced to writing, and subscribed and sworn to before Alexander W. Atkins, notary public, at Denver, in the Territory of Colorado.
[witness answers to written questions from Congress]
Sworn and subscribed to before me this 26th day of April, 1865.
ALEXANDER W. ATKINS,
A Colorado notary may take a deposition, if the notary has the legal knowledge to follow the laws and court rules. A notary who does not have the legal knowledge should decline to take a deposition or notarize it.