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Federal Evidence • Hearsay Exceptions - Unavailability Required
EVID#034
Legal Definition
In civil cases, it can be offered even against someone who was not a party or in privity (only requires a similar interest).
Plain English Explanation
In court cases, important testimony from witnesses may be lost if the witness becomes unavailable, like if they pass away or get very sick. Normally, this past testimony can only be used in a new trial against someone who was part of the original case and had a chance to question the witness. However, California has a special rule for civil cases. Unlike federal courts, California allows the testimony to be used more broadly, even against people who weren't part of the first case. The key is that in the original case, someone with a similar motive to question the witness must have had the opportunity to do so. This rule helps ensure that relevant evidence can still be considered by the court, while maintaining fairness. It strikes a balance between getting to the truth and giving parties a chance to question witnesses against them.
Hypothetical
Hypo 1: Bob is facing criminal charges for assault. The prosecution seeks to introduce former testimony from a now-deceased witness who testified against Bob's alleged co-conspirator, Bert, in a previous civil case. Result: The California former testimony exception would not apply here because it is limited to civil cases. In a criminal case, the stricter federal rule would apply, barring the use of the testimony against Bob since he was not a party to the prior case and lacked the opportunity to cross-examine the witness.
Hypo 2: Sam is suing Bob for fraud in a California civil case. Sam wants to use testimony from a witness named George, who is unavailable because he moved overseas. George previously testified in a related case against Bob's former business partner, Bert. However, in the prior case, Bert chose not to cross-examine George. Result: Although California allows former testimony to be used more broadly in civil cases, the exception still requires that the party against whom the testimony is now offered (or a party with a similar interest) had the opportunity and motive to question the witness. Since Bert did not cross-examine George despite having the chance, George's testimony would likely not be admissible against Bob under the former testimony exception.
Hypo 3: In a California civil trial, Sam seeks to introduce former testimony from his own son, Timmy, who testified in a previous case. Timmy is available to testify in the current trial, but Sam prefers to use the former testimony because Timmy's story has changed. Result: The former testimony exception only applies when the witness is unavailable. Since Timmy is available to testify in the current case, his former testimony cannot be used under this hearsay exception, even under California's more permissive rule. If Sam wants Timmy's statements to be considered, Timmy will need to take the stand in the current trial.
Hypo 4: Bob is sued in a California civil case. The plaintiff seeks to introduce former testimony from a witness who testified against Bob's former employee in an unrelated criminal case. The employee worked for Bob 10 years ago in a different capacity, and the prior case had nothing to do with the current civil lawsuit. Result: The California exception would not apply here. While the state's rule is broader than the federal one, it still requires that the party against whom the testimony is now offered had a similar motive to cross-examine the witness in the previous action. Since Bob's former employee's motive in the unrelated criminal case was likely very different from Bob's motive in defending against the current civil claims, the former testimony would not be admissible against Bob.
Hypo 2: Sam is suing Bob for fraud in a California civil case. Sam wants to use testimony from a witness named George, who is unavailable because he moved overseas. George previously testified in a related case against Bob's former business partner, Bert. However, in the prior case, Bert chose not to cross-examine George. Result: Although California allows former testimony to be used more broadly in civil cases, the exception still requires that the party against whom the testimony is now offered (or a party with a similar interest) had the opportunity and motive to question the witness. Since Bert did not cross-examine George despite having the chance, George's testimony would likely not be admissible against Bob under the former testimony exception.
Hypo 3: In a California civil trial, Sam seeks to introduce former testimony from his own son, Timmy, who testified in a previous case. Timmy is available to testify in the current trial, but Sam prefers to use the former testimony because Timmy's story has changed. Result: The former testimony exception only applies when the witness is unavailable. Since Timmy is available to testify in the current case, his former testimony cannot be used under this hearsay exception, even under California's more permissive rule. If Sam wants Timmy's statements to be considered, Timmy will need to take the stand in the current trial.
Hypo 4: Bob is sued in a California civil case. The plaintiff seeks to introduce former testimony from a witness who testified against Bob's former employee in an unrelated criminal case. The employee worked for Bob 10 years ago in a different capacity, and the prior case had nothing to do with the current civil lawsuit. Result: The California exception would not apply here. While the state's rule is broader than the federal one, it still requires that the party against whom the testimony is now offered had a similar motive to cross-examine the witness in the previous action. Since Bob's former employee's motive in the unrelated criminal case was likely very different from Bob's motive in defending against the current civil claims, the former testimony would not be admissible against Bob.
Visual Aids
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