Chapter 3 - §16. Exception—Former testimony

• Jurisdiction: United States

§16. Exception—Former testimony

Former testimony given by a declarant who is now unavailable as a witness is admissible as an exception to the hearsay rule. Evid. C. §1291.

§16.1. Overview. When a declarant who gave sworn testimony at an earlier legal proceeding is unavailable to testify, the declarant's former testimony can be introduced against a party who had the opportunity to cross-examine the declarant during the earlier proceeding. Evid. C. §1291. In a criminal trial, either the prosecution or the defendant can introduce former testimony. See 7 Cal. Law Revision Comm'n Rep. (1965) p. 1248.

§16.2. Requirements for exception. For former testimony to be admissible as a hearsay exception, the following criteria must be met:

1. Statement given as former testimony. The declarant's former testimony must have been given under oath in (1) another action, (2) a former hearing or trial of the same action, (3) certain federal agency proceedings, (4) a deposition taken in a different action, or (5) an arbitration proceeding. See Evid. C. §§1290, 1291(a). The term "former hearing" is broad enough to encompass a preliminary hearing in a criminal proceeding. See People v. Wilson (2021) 11 Cal.5th 259, 290; People v. Lepe (4th Dist.1997) 57 Cal.App.4th 977, 982-83, disapproved on other grounds, People v. Cromer (2001) 24 Cal.4th 889.

2. Declarant is unavailable. The declarant must be unavailable as a witness. Evid. C. §1291(a). The ability to cross-examine the witness (and to have the jury observe the witness's demeanor while testifying) is so critical that only the declarant's unavailability can justify the admissibility of former testimony. See 1 Witkin, California Evidence (5th ed.), Hearsay §258. See "When declarant is considered unavailable," ch. 3-B, §1.2.1.

3. Statement offered against proper adverse party. The declarant's former testimony must be offered against an adverse party who was a former proponent of the testimony or who had a previous opportunity to cross-examine the declarant.

(1) Former proponent of statement. A declarant's former testimony is admissible against an adverse party if the adverse party originally offered the declarant's former testimony on his own behalf at the earlier proceeding. Evid. C. §1291(a)(1). The adverse party's previous direct and redirect examination of the declarant should be considered an adequate substitute for his present right to cross-examine the declarant. 7 Cal. Law Revision Comm'n Rep. (1965) p. 1248. The adverse party and the declarant can be one and the same. For example, if a defendant originally chose to testify in his own defense at his first trial and, after a mistrial, invokes his right against self-incrimination in his second trial (making himself unavailable), the prosecution can offer the defendant's former testimony against him (including acknowledgment of earlier criminal convictions). See People v. Malone (3d Dist.2003) 112 Cal.App.4th 1241, 1244; see also People v. Kiney (3d Dist.2007) 151 Cal.App.4th...