California Criminal Jury Instructions (CALCRIM) (2017)

317. Former Testimony of Unavailable Witness

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317.Former Testimony of Unavailable Witness
The testimony that <insert name of witness> has given
under oath (was/will be) (read to/played for) you because (he/she) is not
available. You must evaluate this testimony by the same standards that
you apply to a witness who testified here in court.
New January 2006
BENCH NOTES
Instructional Duty
The court has discretion to give an instruction on the weight a jury should give to
former testimony of an unavailable witness. (People v. Wharton (1991) 53 Cal.3d
522, 598–599 [280 Cal.Rptr. 631, 809 P.2d 290].) No case holds that a trial court
has a sua sponte duty to instruct on the use of former testimony of an unavailable
witness.
AUTHORITY
• Instructional Requirements. People v. Wharton (1991) 53 Cal.3d 522, 598–599
[280 Cal.Rptr. 631, 809 P.2d 290].
• Admissibility of Former Testimony. Evid. Code, § 1291.
• Admissibility of Hearsay Evidence or Deposition Testimony Generally. Pen.
Code, § 686(3).
• Former Testimony Defined. Evid. Code, § 1290.
• Unavailable Witness Defined. Evid. Code, § 240.
• Admissibility of Former Testimony as Substitute for Live Testimony. People v.
Reed (1996) 13 Cal.4th 217, 225–226 [52 Cal.Rptr.2d 106, 914 P.2d 184].
Secondary Sources
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 539.
1Witkin, California Evidence (4th ed. 2000) Hearsay, §§ 18 et seq., 264 et seq.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.13[2], [3][o] (Matthew Bender).
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