Former Testimony Law and Legal Definition

Former testimony is an exception to the hearsay rule of evidence, which prohibits introduction into evidence of out-of-court statements of unavailable witnesses. Former testimnoy is testimony given in an earlier proceeding – if the witness is unavailable for trial. Federal Rule of Evidence 804(b)(1), which basically follows the common law, imposes these requirements:

  1. Hearing or deposition: The testimony was given either at a hearing in the same or earlier action, or in a deposition in the same or different proceeding;
  2. Party present: The party against whom the testimony is now offered was present at the earlier testimony (or, in a civil case, that party’s "predecessor in interest" was present); and
  3. Opportunity to cross-examine: The party against whom the testimony is offered had the opportunity and similar motive to develop the testimony. Usually, this opportunity will have been the chance to cross-examine, but it may have been a chance to expand the testimony by direct or redirect examination.

"Hearing" and "proceeding" are generally understood to mean any official inquiry in which sworn testimony is taken. Therefore, a prior trial, a preliminary hearing in a criminal case, a grand jury hearing, and a deposition, all qualify.