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De bene esse is of Latin origin and literally translates to of well-being, but this is not its normal use in the legal world, where it is connected to terms like conditional, good for now, or good for the present. The term is most often applied legally when taking statements or depositions from witnesses who don’t have obligation to appear at a trial or who might not, for many reasons, be present when a trial occurs. In these cases deposition or evidence de bene esse could be used in a trial if approved by a judge. On the other hand, someone who does plan to appear at trial might have their earlier deposition simply disregarded, though there are complicated rules, varying by region, which might apply.
Some of the key reasons to get a deposition de bene esse include great likelihood that a person with relevant information will be absent at the time of a trial. A person with a serious illness who might not live to a trial date, but who has meaningful information, or someone who is not going to remain in an area and probably wouldn’t or could not be compelled to return for a trial poses a risk for prosecuting and defending attorneys. Having that “good enough” or “good for now” information can support a case. This means it may be vital to collect information or get a deposition, as there might only be one chance to do this, and a trial date could still be far away.
Yet the reason that the information is considered “conditional” is if circumstances change and a person ends up testifying at trial. In most cases, trial testimony would supersede a previous deposition, unless the account at trial differs significantly from a deposition given at an earlier time. It is possible for any deposition to be used to impeach or call into question the credibility of a witness, even one initially gathered as de bene esse.
In most cases, gathering de bene esse testimony, evidence, or depositions are simply a good step for guaranteeing all evidence is presented at trial. One other potential issue can arise if testimony of a witness is unfavorable to the person requesting the deposition. In many regions either attorney may call for de bene esse depositions to become part of the trial record. Lawyers have to be certain that deposing someone in this manner is of benefit to their clients. Otherwise, they may have just given their opposition a way of dismantling a case.
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