De bene esse is a legal term meaning “good for now” or “conditional”. It is used to refer to testimony or evidence taken from witnesses who may not be present at trial. This can be crucial if the witness has important information but is unable to attend the trial. However, de bene esse testimony is considered “conditioned” and can be superseded by trial testimony. Lawyers must be careful when requesting depositions de bene esse, as they may give their opposition a way to dismantle their case.
De bene esse is of Latin origin and literally translates as of well-being, but this is not its normal use in the legal world, where it is linked to terms such as conditional, good for now or good for the present. The term is most often applied legally when statements or testimony are taken from witnesses who are under no obligation to appear in a trial or who may not be present, for many reasons, when a trial occurs. In these cases the deposition or proof of good they could be used in a trial if approved by a judge. On the other hand, someone planning to appear at trial could simply ignore their previous testimony, although there are complicated rules, which vary by region, that might apply.
Some of the main reasons for obtaining a de bene esse deposition include the great likelihood that a person with relevant information will be absent at the time of the trial. A person with a serious illness who may not live to a trial date, but who has significant information, or someone who will not stay in one area and likely would not or may not be required to return for a trial poses a risk to prosecution and defend lawyers. Having that “good enough” or “good as of now” information can support a case. This means that gathering information or obtaining a deposition may be crucial, as there may be only one chance to do so and the trial date may still be some way off.
However, the reason the information is considered “conditioned” is if circumstances change and a person ends up testifying at trial. In most cases, trial testimony supersedes a previous deposition, unless the trial record differs significantly from a previously given deposition. It is possible that any testimony could be used to impeach or question the credibility of a witness, even if initially taken as de bene esse.
In most cases, taking de bene esse testimony, evidence, or testimony is simply a good step to ensure that all evidence is presented at trial. Another potential problem can arise if a witness’s testimony is unfavorable to the person requesting the deposition. In many regions both lawyers can request that the depositions de bene esse become part of the pleadings. Lawyers need to be confident that deposing someone in this way is beneficial to their clients. Otherwise, they may have simply given their opposition a way to dismantle a case.
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