Admissibility of Prior Testimony
| Publication year | 1982 |
| Pages | 398 |
1982, February, Pg. 398. Admissibility of Prior Testimony
With the increasing complexity of commercial relationships, it frequently happens that parties engage in litigation before a number of courts and regulatory agencies.(fn1) Thus, problems may arise regarding the admissibility of prior testimony given before other tribunals. Similar problems may be encountered when a new trial or rehearing is ordered. The focus of this article is the admissibility of prior testimony under the Colorado and Federal Rules of Evidence, and Colorado decisions.(fn2)
Prior testimony may be used for impeachment purposes or offered as substantive evidence.(fn3) When offered as substantive evidence, former testimony is hearsay and must satisfy an exception to the hearsay rule.(fn4)
The use of former testimony of a witness as substantive evidence is treated differently depending upon whether the witness is available or unavailable.
A hearsay exception is available only if the witness who testified at the former hearing is not available to testify at the later proceeding. Unavailability includes the following situations in which the witness: is exempt from testifying on grounds of privilege;(fn5) refuses to testify despite a court order to do so;(fn6) lacks memory of the subject matter;(fn7) is unable to be present because of death, illness or mental infirmity, insanity; is beyond the jurisdiction of the court, or whose absence has been procured by an adverse party;(fn8) is prevented from attending by reason of imprisonment, official duty or distance of travel;(fn9) or is disqualified by infamy.(fn10) However, if any of the foregoing reasons of unavailability result from the wrongdoing of the proponent of the testimony, the witness will not be considered to be unavailable.(fn11)
The proponent of the testimony must establish the necessity for use of the former testimony.(fn12) In Colorado, case law indicates that where the witness has left the jurisdiction after the first proceeding, the proponent is not required to show that a diligent effort was made to depose the witness.(fn13) However, when the witness was outside the jurisdiction of the court at the time of the first trial, the proponent must first make an effort to depose the witness.(fn14)
The greater ease and increased frequency of travel today may cause courts to give further consideration to the necessity of first showing that efforts to depose the witness have been made. When the former testimony is offered because the witness cannot be found, the proponent must show that a diligent search was made. It is within the discretion of the trial court to determine whether a sufficiently diligent search was made.(fn15)
In general, the former testimony must have been given in a proceeding involving the same issues and parties.(fn16) The issues need not be identical, but must have been sufficiently similar to have provided an adequate opportunity and incentive for cross-examination.(fn17) There is no requirement that the party against whom the former testimony is offered did in fact develop the testimony through cross-examination.(fn18) However, it is necessary to show that the opportunity to cross-examine was present.(fn19) Absolute identity of the parties is not required.(fn20)
Professor Wigmore suggests that it ought to be sufficient that the former testimony was given upon such an issue that the party-opponent in the prior proceeding had the same interest and motive in his cross-examination as does the present opponent.(fn21)
Admissibility is more complex when the witness is available. The prior testimony of an available witness, or an unavailable witness, may not be hearsay at all if it is either the admission of a party-opponent or the declarant testifies and is subject to cross-examination and the statement is (a) inconsistent and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; or (b) consistent and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.(fn22) Such statements may be admitted as substantive evidence upon the assumption that the jury hearing such statements for impeachment purposes would not heed a limiting instruction and that statements made closer in time to the...
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