Section 30.7 Witness Other Than Defendant

• Library: Criminal Practice 2012 Supp

1. (§30.7) Witness Other Than Defendant

The Missouri rule as to use of the transcript of former testimony of a witness is in State v. Purl, 183 S.W.2d 903 (Mo. 1944). The conditions under which such testimony is admissible include that:

· 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 the issues are substantially the same in the case on trial; 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).

Sufficient foundation regarding the unavailability of a witness is laid if the witness:

· is dead, State v. Hudspeth, 60 S.W. 136 (Mo. 1900);

· is beyond the reach of process, State v. Harp, 6 S.W.2d 562 (Mo. banc 1928) (the same as the witness being dead);

· is insane, State v. Pierson, 85 S.W.2d 48 (Mo. 1935); or

· refuses to testify, State v. Phillips, 511 S.W.2d 841
(Mo. 1974).

Unavailability is also established if the witness has fled to avoid process and obligation to testify, State v. Lindsay, 709 S.W.2d 499 (Mo. App. W.D. 1986), or if the witness invokes the Fifth Amendment privilege against self-incrimination, State v. Mueller, 872 S.W.2d 559 (Mo. App. E.D. 1994); State v. Franks, 685 S.W.2d 845 (Mo. App. E.D. 1984).

The witness must be unavailable after the exercise of due diligence to...