How to Use a Former Testimony at Trial in California
The California Evidence Code provides that hearsay is not admissible if offered to establish that what was said is actually true. A number of exceptions to this rule are listed in the Evidence Code, including an exception for former testimony. The testimony could have been given at a hearing, at a trial or as part of a deposition. Former testimony can be a powerful tool but can at times be difficult to establish. It is best to notify the judge in a written motion of your intention of offering former testimony into evidence.
Other People Are Reading
Instructions
-
-
1
Include language in the motion that establishes that the witness who previously testified is not available to testify in the present case. If that party is deceased, be prepared to present a copy of the person's death certificate to the court. A witness who refuses to testify can also be considered unavailable.
-
2
Inform the court that the opposing party in the present case was also a party in the previous case.
-
-
3
Inform the court that the other party in the present case had the opportunity to cross-examine the testifying witness.
-
4
Include language in the motion that establishes that the other party in the present case had the same motivation in questioning the witness at the prior hearing. For example, in a prior car accident case, the witness may have been asked how fast the car was traveling, whether the turn signals and brake lights were working, and whether the windshield was dirty. In a later breach of contract case, that same witness may instead be asked whether the signature on a document was the witness's, whether payment was made, and whether the agreed services were provided. Since the motivation when asking questions in these two scenarios is different, testimony in the car accident case could not be used in the breach of contract case. On the other hand, if both cases were about the same car accident, then the motivation in asking questions in the first case would have been the same as in the second case and the former testimony exception could be used.
-
1
References
- Photo Credit Hemera Technologies/Photos.com/Getty Images
