Article 9 - Former Testimony

California Evidence Code — §§ 1290-1294

Sections (5)

Enacted by Stats. 1965, Ch. 299.

As used in this article, “former testimony” means testimony given under oath in:

(a)Another action or in a former hearing or trial of the same action;

(b)A proceeding to determine a controversy conducted by or under the supervision of an agency that has the power to determine such a controversy and is an agency of the United States or a public entity in the United States;

(c)A deposition taken in compliance with law in another action; or

(d)An arbitration proceeding if the evidence of such former testimony is a verbatim transcript thereof.

§ 1291

Enacted by Stats. 1965, Ch. 299.

(a)Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:

(1)The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or

(2)The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.

(1)Objections to the form of the question which were not made at the time the former testimony was given.

(2)Objections based on competency or privilege which did not exist at the time the former testimony was given.

§ 1292

Enacted by Stats. 1965, Ch. 299.

(a)Evidence of former testimony is not made inadmissible by the hearsay rule if:

(1)The declarant is unavailable as a witness;

(2)The former testimony is offered in a civil action; and

(3)The issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing.

(b)The admissibility of former testimony under this section is subject to the same limitations and objections as though the declarant were testifying at the hearing, except that former testimony offered under this section is not subject to objections based on competency or privilege which did not exist at the time the former testimony was given.

§ 1293

Added by Stats. 1989, Ch. 322, Sec. 1.

(a)Evidence of former testimony made at a preliminary examination by a minor child who was the complaining witness is not made inadmissible by the hearsay rule if:

(1)The former testimony is offered in a proceeding to declare the minor a dependent child of the court pursuant to Section 300 of the Welfare and Institutions Code.

(2)The issues are such that a defendant in the preliminary examination in which the former testimony was given had the right and opportunity to cross-examine the minor child with an interest and motive similar to that which the parent or guardian against whom the testimony is offered has at the proceeding to declare the minor a dependent child of the court.

(b)The admissibility of former testimony under this section is subject to the same limitations and objections as though the minor child were testifying at the proceeding to declare him or her a dependent child of the court.

(c)The attorney for the parent or guardian against whom the former testimony is offered or, if none, the parent or guardian may make a motion to challenge the admissibility of the former testimony upon a showing that new substantially different issues are present in the proceeding to declare the minor a dependent child than were present in the preliminary examination.

(d)As used in this section, “complaining witness” means the alleged victim of the crime for which a preliminary examination was held.

(e)This section shall apply only to testimony made at a preliminary examination on and after January 1, 1990.

§ 1294

Amended by Stats. 2018, Ch. 64, Sec. 1. (AB 1736) Effective January 1, 2019.

(a)The following evidence of prior inconsistent statements of a witness properly admitted in a conditional examination, preliminary hearing, or trial of the same criminal matter pursuant to Section 1235 is not made inadmissible by the hearsay rule if the witness is unavailable and former testimony of the witness is admitted pursuant to Section 1291:

(1)A video or audio recorded statement introduced at a

conditional examination, preliminary hearing, or prior proceeding concerning the same criminal matter.

(2)A transcript, containing the statements, of the conditional examination, preliminary hearing, or prior proceeding concerning the same criminal matter.

(b)The party against whom the prior inconsistent statements are offered, at his or her option, may examine or cross-examine any person who testified at the conditional examination, preliminary hearing, or prior proceeding, as to the prior inconsistent statements of the witness.

(c)As used in this section, “conditional examination” has the same meaning as in Chapter 4 (commencing with Section

1335) of Title 10 of Part 2 of the Penal Code.