§ 45.04 Stipulations of Expected Testimony

• Jurisdiction: United States

§ 45.04 Stipulations of Expected Testimony

In addition to stipulations of fact, the parties may stipulate to the expected testimony of a witness who will not attend the trial or to the contents of a document that will not be produced at trial.²² By entering into such an agreement, the parties do not accept the admissibility or factual accuracy of the stipulated testimony: "[W]hen evidence is offered by way of stipulation, there is no agreement as to the facts which the evidence seeks to establish. Such a stipulation only goes to the content of the testimony of a particular witness if he were to appear and testify. The agreement is to what the evidence will be, not to what the facts are."²³

Hence, by entering into a stipulation of expected testimony, a party is not precluded from raising independent evidentiary objections to the content of the stipulated testimony or from introducing rebuttal evidence.

The problems associated with stipulations of expected testimony are illustrated by People v. Maurice,²⁴ a prosecution for illegally dispensing heroin. "The entire case for the prosecution was contained in a stipulation entered into between the parties."²⁵The stipulated testimony, however, failed to show that the drugs analyzed by the state's expert were the same drugs that had been seized from the defendant. Because there was no evidence connecting the analyzed and seized drugs, the appellate court reversed.

--------

Notes:

^[22] See United States v. Stephens, 365 F.3d 967, 976 (11th Cir. 2004) ("[T]he parties may stipulate to what the individual would have said, thus alleviating the need to call him."); Yates v. Bair, Transport, Inc., 249 F. Supp. 681, 682 (D.C.N.Y. 1965) ("The parties have stipulated that if the reporting officer were called he would testify that the police blotter was prepared by him in the regular course of his duties and filed with the Police Department in accordance with his and their regular practice and procedure. If the officer were called, it is further agreed that he would also testify that the photostatic copy was authentic."). See also Diaz v. United States, 223 U.S. 442, 451 (1912) ("Thus, it is held that the right is waived where, by the consent of the accused, the prosecution is permitted to read in evidence the testimony of an absent witness, given in some prior proceeding or a statement of what such a witness would...