Evidence Legal Topics Litigation Strategy Trial Strategy

3 Ways to Prove Former Testimony at Trial

There are times you want to offer former testimony against a party to a former proceeding or against a party at the current trial who wasn’t a party to the former proceeding. There’s a hearsay exception for that, and here’s how you use it.

The hearsay exception for former testimony deals primarily with statements that were made under oath and admitted into evidence in a prior hearing or trial. See Evid C §1290. This exception also covers deposition testimony taken in another action. (The rules governing admissibility of a deposition taken in the same action are in CCP §2025.620.)

Although the Evidence Code doesn’t indicate how to prove former testimony at the current trial, these are the three ways it’s done:

  1. Reporter’s transcript of testimony. Using the reporter’s transcript is the customary manner of proof. A reporter’s transcript is itself a hearsay statement of the reporter. See Evid C §1200. An official reporter’s transcript is admissible under the hearsay exception for official records. See Evid C §1280. This exception is then used to prove the declarant’s previously given testimony, admissible under the former-testimony hearsay exception of Evid C §§1291–1292.
  2. Witness recollection of testimony. Although less reliable than a reporter’s transcript, a person who heard the declarant testify in the previous action may be called as a witness to testify from recollection on the declarant’s testimony in the former trial. People v Downs (1952) 114 CA2d 758, 761. Interestingly, adoption of the Evidence Code didn’t change the rule of the older cases that a reporter’s transcript isn’t essential. See Meyer v Foster (1905) 147 C 166, 169 (fact that unavailable declarant’s testimony at former trial was taken down by official reporter doesn’t exclude oral evidence by persons testifying from memory alone).
  3. Recorded testimony. It’s also permissible to use a recording of former testimony to prove the content of former testimony. See People v Moran (1974) 39 CA3d 398, 406 (use of videotaped testimony).

For more on offering former testimony, as well as a discussion of the objections available to use against it, turn to CEB’s classic resource on evidence, Jefferson’s California Evidence Benchbook, chap 8.

Other CEBblog™ posts on evidence issues:

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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