Section 16.23 Former Testimony

• Library: Evidence 2017

B. (§16.23) Former Testimony

Generally, testimony given under oath in a different civil or criminal proceeding is not admissible. Bartlett v. Kansas City Pub. Serv. Co., 160 S.W.2d 740, 742–43 (Mo. 1942). The reason for the general rule is that the current parties did not have an opportunity to cross-examine the witness about the particular issues in the pending case. SeeMaturo v. Stone, 856 S.W.2d 84, 85 (Mo. App. E.D. 1993).

The former testimony exception applies, however, when all of the following factors are present:

· The witness is unavailable.

· The examination of the witness occurred in a judicial tribunal or at a deposition in connection with a judicial or administrative proceeding.

· The witness was sworn and testified.

· The party (or a party with whom the current party is in privity) was present and had an opportunity to cross-examine the witness.

· The issues in the two cases are substantially the same.

State v. Aaron, 218 S.W.3d 501, 512 (Mo. App. W.D. 2007) (there was adequate cross-examination after Crawford v. Washington, 541 U.S. 36 (2004), at the preliminary hearing); State v. Dreiling, 601 S.W.2d 660, 663 (Mo. App. S.D. 1980) (the conviction was reversed because the State was not “diligent” in securing the witness). In criminal cases, the State is required to provide a transcript of any such testimony available to it. See Rule 25.03.

Is former testimony before an administrative tribunal admissible under this exception in a civil case? Given that § 536.070, RSMo 2016, permits cross-examination of witnesses under oath in contested cases before administrative...