What is the test for admitting a witness who has testified against the same defendant at a similar proceeding?

California, United States of America


The following excerpt is from People v. Ferrebee, B295760 (Cal. App. 2020):

"'A defendant has a constitutional right to confront witnesses, but this right is not absolute. If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial. [Citations.] The constitutional right to confront witnesses mandates that, before a witness can be found unavailable, the prosecution must "have made a good-faith effort to obtain his presence at trial."' [Citations.] California law and federal constitutional requirements are the same in this regard. [Citation.] Moreover, for the prior testimony to be admissible, the defendant must have had the opportunity to cross-examine the witness at that hearing with an interest and motive similar to that which defendant has at the hearing at which the testimony is admitted. [Citations.] 'The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable.'" (People v. Valencia (2008) 43 Cal.4th 268, 291-292; see Evid. Code, 1291, subd. (a)(2).)

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