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


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