The State commenced these proceedings in the district court seeking a declaration by the court as to whether or not the defendant was entitled to pursue the Utah Rules of Civil Procedure relating to discovery and particularly the claimed right of the defendant to take depositions of various witnesses.
The defendant Glenn G. Nielsen was charged with two criminal offenses, one being for the misuse of public funds, a felony under the provisions of Section 76-8 — 404, U.C.A.1953, as amended, and with using his position as a member of a Board of Commissioners of Logan City to secure privileges or exemptions which is a misdemeanor under the provisions of Section 67-16-4, U.C.A.1953. In the criminal proceedings the defendant served notice of his intention to take the depositions of various prospective witnesses and in connection therewith caused a subpoena duces tecum to be served requiring witnesses to produce pertinent information, memoranda, notes, documents, writings, and data compilations, relating to the criminal offenses charged in the complaints and in possession of the witnesses.
The defendant claims the right to take the depositions and for the production of the materials by reason of Rule 81(e), Utah Rules of Civil Procedure which provides as follows:
Application in criminal proceedings. These rules of procedure shall also govern in any aspect of criminal proceedings where there is no other applicable statute or rule, provided, that any rule so *1367applied does not conflict with any statutory or constitutional requirement.
The taking of depositions in criminal cases is governed by two statutes hereinafter set forth:
77-46-1, U.C.A.1953. When a defendant has been held to answer a charge for a public offense he may, either before or after an indictment or information, have witnesses examined conditionally on his behalf as prescribed in this chapter, and not otherwise. [Emphasis added] 77-46-2, U.C.A1953. When a material witness for the defendant is about to leave the state, or is so ill or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the defendant may apply for an order that the witness be examined conditionally.
It appears that the wording of the statutes above set forth makes Rule 81(e) inapplicable and that the Rules of Civil Procedure pertaining to discovery may not be used in criminal cases.
It is also noted that the language of Rule 30(a), U.R.C.P., is so broad in scope that its application to criminal cases would present grave constitutional problems. Under the rule “any party may take the testimony of any person, including a party, by deposition upon oral examination.” If the rule were applied in accordance with its terms a deposition of a defendant might be taken and in cases involving multiple defendants the door would be open for attempts by one defendant to take the deposition of co-defendants. An attempt to take a deposition of a defendant would violate his right against self-incrimination and his right to remain silent as provided for by Article I, Section 12 of Utah Constitution. The majority rule is to the effect that neither statutes nor rules of civil procedure providing for discovery or the inspection of evidence in the possession of an adverse party will be made applicable to criminal cases.1
We are of the opinion that until such time as the statutes above referred to are modified or repealed by the legislature this court would be without power to provide for discovery proceedings by court rule. The defendant calls our attention to Rule 25 adopted by the Uniform Rules of Criminal Procedure Advisory Committee. While the adoption of such a rule may promote the ends of justice, nevertheless until the barrier of the statutes is removed the power of the court to adopt such a rule is without a sound basis.
The judgment of the court below is affirmed. No costs awarded.
CALLISTER, C. J., and HENRIOD, J., concur.. Redmond v. City Court of Salt Lake City, 17 Utah 2d 95, 404 P.2d 964; State v. Lack, 118 Utah 128, 221 P.2d 852; State v. Jeffries, 117 Kan. 742, 232 P. 873; Hameyer v. State of Nebraska, 148 Neb. 798, 29 N.W.2d 458; State v. District Court in and for Delaware County, 253 Iowa 903, 114 N.W.2d 317; State v. Fox, 122 Vt. 251, 169 A.2d 356; People v. Abbatiello, 46 Misc.2d 148, 259 N.Y.S.2d 203.