former testimony exception

The former testimony exception allows the previous testimony of a witness to be admissible in a second proceeding as an exemption to the hearsay rule under the Federal Rules of Evidence.

The exception is allowed provided that it involves the same issue and the same parties, and that

1. There is a meaningful opportunity to cross examine or to develop the testimony since it was given live in the first proceeding; and
2. The declarant is unavailable to testify in the second proceeding. 

According to Rule 804 of the Federal Rules of Evidence regarding hearsay exceptions, a declarant is unavailable if: 

1. A court rules that privilege exempts them from testifying,
2. They refuse to testify,
3. They claim no memory of the subject matter,
4. They cannot be present due to illness or death, or 
5. Are absent due to other hearsay exceptions. 

[Last reviewed in May of 2024 by the Wex Definitions Team]

Keywords

• evidence

Wex

• THE LEGAL PROCESS
• courts
• criminal procedure
• evidence
• wex definitions
• civil procedure
• courts and procedure
• legal education and practice