ONCALL
...Evidence
......Hearsay Except. Requiring Unavail
17 Cards On This Topic:

D's brother's efforts to deny his damaging statements to Os were not likely made with the possibility of perjury charges in mind, and therefore were not admissible as statements against declarant's interest.

DA's failure to disclose that drug dealer who incriminated D in murders was promised no prosecution for his actions discussed in his statements, admitted as against penal interest, constituted Napue and Brady violations.

Error to admit preliminary hearing testimony of W missing at least two years before trial, but for whom the DA waited until two weeks before trial to start their search.

Deceased W's testimony from D's TX murder trial properly admitted under EC §1291 as D had a sufficiently similar interest and motive in cross-examining W during both trials.

Evid. Code §1291 does not exclude foreign testimony from being admitted as former testimony of an unavailable declarant.

The motives to cross-examine a witness at a prior hearing and the trial need not be mutually exclusive with the other; motives need not be identical, only similar.

Depositions of D’s employees taken in a prior class action properly admitted in a fraud suit because D had “similar interests and motives” in cross-examining the deponent.

The possibility that current counsel would have cross-examined a witness differently or more searchingly does not, in itself, render the prior testimony inadmissible under EC §1291.

Evid. Code §1291 articulates a general rule (not a categorical bar) against admission at trial of prior testimony from a typical discovery deposition.

Evid. Code §1291 distinguishes trial testimony from deposition testimony and recognizes, in effect, a general rule ••in favor of•• introducing prior ••trial testimony•• in subsequent trials.

The burden to establish the conditions of the exception to the hearsay rule articulated by section 1291(a)(2) rests with the ••proponent•• of admission.

Checklist to determine whether to exclude prior deposition testimony from unavailable witness.

A sexual assault victim who refuses to testify against her accuser again may be found to be unavailable pursuant to EC §1291.

Defendant's convictions for attempted murder and assault with a deadly weapon reversed where prosecution did not exercise due diligence in making deported eyewitness available for trial.

Trial ct. improperly admitted murder victim's hearsay statements under EC §1390 upon insufficient evidence defendant killed victim to prevent her from being a witness against him; error prejudicial.

Statement was admissible under EC §1323 to prove land boundaries.

There is no categorical bar to admitting former deposition testimony under EC §1291 based on the premise that a party’s motive to examine its witnesses at deposition always differs from its motive to do so at trial.