Section 23.77 Former Testimony

• Library: Criminal Practice 2012 Supp

G. (§23.77) Former Testimony

The right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against the accused. Pointer v. Tex., 380 U.S. 400, 404 (1965). An exception has been recognized for testimony given at a previous judicial proceeding against the same defendant when the testimony was subject to cross-examination and the witness is now unavailable. State v. Lindsay, 709 S.W.2d 499, 504 (Mo. App. W.D. 1986). To qualify for admission under this exception, the proponent of the evidence must show that the declaration bears adequate indicia of reliability. Id. Testimony at a prior hearing is admissible when:

it was before a judicial tribunal;

the witness was sworn and testified;

the accused was present and had an opportunity for cross-examination;

the parties and issues were substantially the same in the case; and

the witness is unavailable after due diligence.

State v. Sumowski, 794 S.W.2d 643, 648 (Mo. banc 1990); State v. Dreiling, 601 S.W.2d 660, 662 (Mo. App. S.D. 1980). It is only necessary that the witness producing the testimony was under oath and could have been cross-examined; it does not matter whether the opportunity was exercised. State v. Logan, 126 S.W.2d 256, 259 (Mo. 1939). The criminal charges may be different, State v. Brown, 56 S.W.2d 405...