- Former Testimony – The testimony of a now unavailable witness, given in a proceeding or deposition, and is offered by a party who, on the prior occasion, had an opportunity at the prior proceeding to develop the declarant’s testimony (i.e. by direct, cross, or redirect examination).
- NOTE: The relevance of the former testimony to the current trial must be substantially similar to its relevance in the prior proceeding (so that the party had a similar motive to cross-examine)
Privilege
Absence from jurisdiction
Illness or death
Lack of memory
Stubborn refusal to testify
- Rationale behind former testimony exception: Reliability is assured by the cross-examination on the prior occasion (so long as the opposing party had a similar motive); however, we prefer live testimony, so the witness must now be unavailable.