(a)Except as otherwise provided in subdivision (b), “unavailable as a witness” means that the declarant is any of the following:
(1)Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.
(2)Disqualified from testifying to the matter.
(3)Dead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity.
(4)Absent from the hearing and the court is unable to compel
his or her attendance by its process.
(5)Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.
(6)Persistent in refusing to testify concerning the subject matter of the declarant’s statement despite having been found in contempt for refusal to testify.
(b)A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the declarant from attending or testifying.
(c)Expert testimony that establishes that physical or mental trauma
resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term “expert” means a physician and surgeon, including a psychiatrist, or any person described by subdivision (b), (c), or (e) of Section 1010.
The introduction of evidence to establish the unavailability of a witness under this subdivision shall not be deemed procurement of unavailability, in absence of proof to the contrary.
Notes of Decisions
Cited in
264
cases (
55 in the last 5 years), 1968–2026 · leading case:
People v. Alcala, 842 P.2d 1192 (Cal. 1992).
People v. Alcala, 842 P.2d 1192 (Cal. 1992).
· cites it 14× “" The prosecutor moved that the trial court declare Crappa unavailable as a witness (Evid. Code, § 240, subd. (a)(3)), and permit Crappa's testimony from defendant's first trial to be read to the jury pursuant to the prior-testimony exception to the hearsay rule.”
People v. Williams, 181 P.3d 1035 (Cal. 2008).
· cites it 6× “13 Evidence Code section 240, subdivision (a) defines the circumstances under which a witness may be considered unavailable for the purpose of admitting the witness’s prior testimony in evidence.”
People v. Smith, 68 P.3d 302 (Cal. 2003).
· cites it 5× “As relevant, it provides that to establish unavailability, the proponent of the evidence, here the prosecution, must establish that the witness is absent from the hearing and either that “the court is unable to compel his or her attendance by its process” (Evid. Code, § 240,…”
People v. Stritzinger, 668 P.2d 738 (Cal. 1983).
· cites it 10× “(Evid. Code, § 240, subd. (a)(3).) Her preliminary hearing testimony was therefore ruled admissible.”
People v. Wilson, 114 P.3d 758 (Cal. 2005).
· cites it 3× “” In turn, Evidence Code section 240, subdivision (a)(5), states a declarant is “unavailable as a witness” if the declarant is “[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her…”
People v. Reed, 914 P.2d 184 (Cal. 1996).
· cites it 4× “Evidence Code section 240, which defines the phrase "unavailable as a witness," makes no specific mention, it is true, of the Guerrero rule barring live testimony in these circumstances.”
People v. Christensen, 229 Cal. App. 4th 781 (Cal. Ct. App. 2014).
· cites it 4× “He says the court erred in admitting both the testimony Joshua gave in the first trial (Evid. Code, § 240, subd. (a)(3)) and the evidence of the prior offense against Spencer (Evid.”
People v. Friend, 211 P.3d 520 (Cal. 2009).
· cites it 2× “Evidence Code section 240, subdivision (a)(5), states a declarant is ‘unavailable as a witness’ if [he or she] is ‘[ajbsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the…”
People v. Louis, 728 P.2d 180 (Cal. 1986).
· cites it 4× “" (Evid. Code, § 240, subd. (a)(5).) The testimony is deemed "reliable" if "[t]he party against whom [it] is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and…”
People v. Harris, 118 P.3d 545 (Cal. 2005).
· cites it 2× “) [3] *529 Defendant argues that at the time of the preliminary hearing, counsel did not know of Canto's illegal drug activities, and consequently he did not have an opportunity to cross-examine with the same interest and motive as he would have, had Canto been available at…”
People v. Cogswell, 227 P.3d 409 (Cal. 2010).
· cites it 4× “Because the prosecution could not show that it had used reasonable diligence in securing Lorene’s attendance at defendant’s trial (Evid. Code, § 240, subd. (a)(5)), and because without such a showing it could not use at trial the testimony that Lorene had given at the…”
People v. Pope, 590 P.2d 859 (Cal. 1979).
· cites it 2× “" [7] Evidence Code section 240, subdivision (a)(5) provides that a declarant is "unavailable as a witness" if he is "[a]bsent from the hearing and the proponent of his statement has exercised reasonable diligence but has been unable to procure his attendance by the court's…”
— Cal. Evidence Code § 240(a)(1) — 1 case
— Cal. Evidence Code § 240(a)(3) — 3 cases
— Cal. Evidence Code § 240(a)(5) — 6 cases
— Cal. Evidence Code § 240(b) — 1 case
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.