Opinion No. 71-415 (1972) Ag ( 1972 )

DEPOSITIONS IN BASTARDY PROCEEDING

A defendant in a Bastardy Proceeding would be entitled to take the deposition of a witness in accordance with provisions of 12 O.S. 434 [12-434] (1971). The Attorney General has had under consideration your request for an opinion relating to the use of depositions in a Bastardy Proceeding under Title 10 O.S. 71 [10-71] (1971) et seq. You specifically ask the following question: "Whether a defendant, in a Bastardy Proceeding, is entitled to take the deposition of a witness in accordance with provisions of 12 O.S. 434 [12-434] (1971)?" Section 12 O.S. 434 [12-434], supra, of this State's Civil Procedure Code, provides in part: "Any person named in the caption in an action may commence taking testimony by deposition at any time after service of summons is effected on any of the defendants or, in any event, after ten (10) days following issuance of summons for service upon any person or persons named as defendants in the caption." The Court of Criminal Appeals held in Parmenter v. State, Okl. Cr., 377 P.2d 842, that: "The rule providing for taking testimony of any person by deposition (12 O.S. 434 [12-434]) . . . . is applicable only in civil procedure, and has no application in criminal procedure." A Bastardy Proceeding under 10 O.S. 71 [10-71] et seq., supra, has been characterized as a civil adjudication of paternity. See Harris v. State, Okl. Cr., 430 P.2d 337; Leach v. State, Okl., 398 P.2d 848 and McKiddy v. State, Okl.,366 P.2d 933. The procedure to be followed in a Bastardy Proceeding is discussed in Simmons v. State, Okl.,299 P.2d 1109, wherein the Court held: "A bastardy proceeding under Chapter 3, Title 10 O.S. 1951 is of a civil nature and governed in general by rules of civil procedure." Foregoing authorities characterize a Bastardy Proceeding as civil in nature, and apply rules of civil procedure to the conduct of such a proceeding; therefore, it is the opinion of the Attorney General that a defendant in a Bastardy Proceeding would be entitled to take the deposition of a witness in accordance with provisions of 12 O.S. 434 [12-434] (1971). (Jeff L. Hartmann)