Hearsay and circumstances of its admissibility - Former testimony; depositions

Learning Outcomes

After reading this article, you will be able to identify when former testimony and depositions are admissible under the hearsay rules, distinguish between the requirements for admissibility in civil and criminal cases, and apply the correct standards for cross-examination and party opportunity. You will also be able to answer MBE-style questions on this subtopic with confidence.

MBE Syllabus

For the MBE, you are required to understand the rules governing the admissibility of hearsay, especially as they relate to former testimony and depositions. This article covers:

• The definition and rationale for the hearsay rule.
• The requirements for admitting former testimony as a hearsay exception.
• The use of depositions at trial and the conditions for their admissibility.
• The necessity of unavailability and opportunity for cross-examination.
• The differences in admissibility between civil and criminal cases.
• The role of parties and predecessors in interest in former testimony exceptions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is required for former testimony to be admissible under the hearsay exception?
   1. The declarant is unavailable and the party against whom the testimony is offered had an opportunity and similar motive to cross-examine.
   2. The declarant is available and the testimony was given under oath.
   3. The testimony was given at a deposition, regardless of party opportunity.
   4. The testimony was given in a prior unrelated proceeding.
2. In a civil case, a deposition transcript may be used at trial if:
   1. The witness is unavailable and the opposing party had an opportunity to cross-examine.
   2. The deposition was taken for discovery only.
   3. The witness is available but refuses to testify.
   4. The deposition was not under oath.
3. In a criminal case, former testimony from a preliminary hearing is admissible against the accused if:
   1. The accused had an opportunity and similar motive to cross-examine at the hearing.
   2. The accused was not present at the hearing.
   3. The declarant is available at trial.
   4. The testimony was not subject to cross-examination.

Introduction

The hearsay rule generally excludes out-of-court statements offered to prove the truth of the matter asserted. However, certain exceptions allow for the admission of former testimony and depositions under specific circumstances. Understanding when and how these exceptions apply is essential for MBE success.

Key Term: Hearsay
An out-of-court statement offered to prove the truth of the matter asserted.

The Rationale for the Hearsay Rule

Hearsay is excluded because the declarant is not present for cross-examination, making it difficult to assess perception, memory, sincerity, and clarity. However, former testimony and depositions may be reliable enough to admit if certain safeguards are met.

Former Testimony Exception

Former testimony is admissible as a hearsay exception if the declarant is unavailable and the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Key Term: Former Testimony
Testimony given under oath at a prior proceeding or deposition, now offered at trial as evidence.

Requirements for Admissibility

For former testimony to be admissible:

• The declarant must be unavailable.
• The prior testimony must have been given under oath at a trial, hearing, or deposition.
• The party against whom the testimony is now offered (or, in civil cases, a predecessor in interest) must have had an opportunity and similar motive to examine the witness.

Key Term: Unavailability
A witness is unavailable if they cannot testify due to death, illness, absence, privilege, refusal, or lack of memory.

Key Term: Opportunity and Similar Motive
The party against whom the former testimony is offered must have had a chance and reason to cross-examine the witness in the prior proceeding.

Civil vs. Criminal Cases

• In civil cases, former testimony is admissible if the party (or predecessor in interest) had an opportunity and similar motive to develop the testimony.
• In criminal cases, the accused must have been present and had an opportunity and similar motive to cross-examine the witness.

Use of Depositions at Trial

Depositions may be used at trial if:

• The witness is unavailable, and the opposing party had an opportunity and similar motive to cross-examine.
• The deposition was taken under oath and in accordance with law.
• In civil cases, depositions may also be used for impeachment or if the witness is more than 100 miles from the courthouse.

Key Term: Deposition
Sworn out-of-court testimony recorded for later use in court or for discovery purposes.

Worked Example 1.1

A plaintiff sues a defendant for breach of contract. At a prior hearing in a related case, a key witness testified under oath and was cross-examined by the defendant. The witness has since died. The plaintiff now offers the transcript of that testimony at trial. Is it admissible?

Answer: Yes. The witness is unavailable, the testimony was under oath, and the defendant had an opportunity and similar motive to cross-examine in the prior proceeding.

Worked Example 1.2

In a criminal trial, the prosecution seeks to admit the preliminary hearing testimony of a witness who has moved overseas and cannot be compelled to attend trial. The defendant was present and cross-examined the witness at the preliminary hearing. Is the testimony admissible?

Answer: Yes. The witness is unavailable, and the defendant had an opportunity and similar motive to cross-examine at the preliminary hearing.

Exam Warning

In criminal cases, former testimony is admissible only if the accused had an actual opportunity and similar motive to cross-examine. If the accused was not present or did not have such an opportunity, the testimony is inadmissible.

Revision Tip

Always check if the party against whom the former testimony is offered had both an opportunity and a similar motive to cross-examine at the prior proceeding.

Summary

Former testimony and depositions are admissible as hearsay exceptions if the declarant is unavailable and the party against whom the evidence is offered had an opportunity and similar motive to cross-examine. The rules are stricter in criminal cases, requiring the accused's presence and opportunity for cross-examination. Depositions may be used at trial if taken under oath and the witness is unavailable or outside the court's jurisdiction.

Key Point Checklist

This article has covered the following key knowledge points:

• Hearsay is generally inadmissible unless an exception applies.
• Former testimony is admissible if the declarant is unavailable and the opposing party had an opportunity and similar motive to cross-examine.
• In civil cases, a predecessor in interest may suffice for the opportunity requirement.
• In criminal cases, the accused must have been present and able to cross-examine.
• Depositions may be used at trial if the witness is unavailable or outside the jurisdiction and the deposition was under oath.
• The opportunity and similar motive to cross-examine are essential for admissibility.

Key Terms and Concepts

• Hearsay
• Former Testimony
• Unavailability
• Opportunity and Similar Motive
• Deposition