CALIFORNIA EVIDENCE: CIVIL AND CRIMINAL
...Hearsay Except. Requiring Unavail
......Exception: Former Testimony
.........Effect of Cross-Exam. at Prior Hearing
............Similar Interest and Motive
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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.

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.

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.

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.

Trial court did not err in admitting portions of coD's cross of W at joint prelim. where D had opportunity to cross-examine W at prelim. with an interest and motive similar to that at trial.

Trial court properly, if implicitly, concluded D's "motive and interest" in cross-examining deceased W at prelim and trial were sufficiently similar to satisfy requirements of EC 1291.

D's had opportunity to cross-examine V1, who was later killed and unavailable, at prelim. hearing, in long exam that challenged his credibility, satisfying confrontation clause.

D's motives for cross-examining W during prelim hearing sufficiently similar to those at trial so as to permit admission of prelim testimony; D had opportunity to cross-examine.

As People did not have opportunity to cross-examine the witness with an 'interest and motive similar to' that which they had at trial, pretrial hearing testimony properly excluded."

Admission at D's retrial of former testimony by W now unavailable was proper under Evid. Code §1291 (a)(2); D's "interest and motive" in cross-exam identical at both trials.

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.

D who killed victim after her testimony at prelim had similar motive to cross-examine her at trial. Her prior testimony properly admitted.

In product liability case, depositions of manufacturer's employees inadmissible against distributor.

Use of prior testimony against non-party; similar motive found.