One of the witnesses for the defense in the Scott Peterson case has died. Is there any way the defense can use any of her statements in court? Generally the opposition has the right to cross-examine a witness, but are there exceptions in cases like these?
Any statements the witness made out of court, admitted into evidence for the purpose of proving the truth of the statement, is hearsay. The general proposition is that hearsay is inadmissible.
There are a number of exceptions to this general rule. Some apply in all cases, and other apply only when the witness is unavailable to testify, a condition certainly covered by being dead, “Crossing Over” notwithstanding.
One of those exceptions is “former testimony.” A witness’ former testimony in a previous trial or deposition is admissible, if the party against whom the testimony is offered had an opportunity to explore the testimony by cross-examination.
So statements to the police would likely not be admissible (unless another hearsay exception applied, such as statements against interest, excited utterances, statement near impending death, and so on). Statements made at a deposition would likely be admissible.
- Rick
These hearsay exceptions apply when a declarant is “unavailable.” Dead people are unavailable. There are many other exceptions that apply whether the declarant is available or not, and many of them may apply to specific statements made by a now-dead person.
(b) Hearsay exceptions.
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
(4) Statement of personal or family history. (A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.
(5) [Other exceptions.][Transferred to Rule 807 ]
(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
I think this section of the evidence code answers your question, but if not, knock yourself out searching (check the box for “Evidence Code” in the second column:
I should point out for the sake of clarity that I posted from and linked to the California evidence code. Other states and the feds may/do have different rules. I’m assuming the charges are under CA law.
Just to expand on this question:
What would happen if the witness died after giving testimony but before cross-examination? Would this result in having his testimony thrown out? A mistrial?
Yeah, I know the answer varies by state. Just curious how states deal with it. Answer for any state
Zev Steinhardt
The answer lies in the discretion of the judge. At the very least, the opposing side is entitled to have the testimony stricken. If the testimony was not particularly important, cumulative to other testimony, or concerning facts more collateral than central to the case, striking the testimony may be sufficient remedy.
If the testimony is more serious, “Can’t unring the bell” type, then the judge may well declare a mistrial on the motion of the other party.
Note that if the defense requests a mistrial for any reason other than goading (that is, for any reason other than the prosecution’s outrageous conduct) then jeopardy does not attach, and the accused may be retried.
On appeal, the decision is reviewed under an abuse-of-discretion standard: that is, the reviewing court will ask not, “Would I have denied a request for a mistrial in that situation?” but rather “Could any reasonable judge have denied a mistrial in that situation?”
- Rick