Not automatically. Under the usual former-testimony route, the prosecution must establish that the witness is legally unavailable and that the defendant previously had the right and opportunity to cross-examine with a similar interest and motive. The transcript and the actual efforts to secure the witness matter. A missing witness, a failed subpoena, or a prior finding that the witness might be absent does not by itself satisfy the trial evidence and confrontation requirements. (Evidence Code § 1291; § 240.)
Was the witness legally unavailable?
Evidence Code section 240 identifies specific grounds, including a privilege that prevents testimony, disqualification, death, physical or mental illness that prevents attendance or testimony, and qualifying absence. Its refusal ground requires persistent refusal to testify despite a contempt finding. Lack of memory is not a separately listed ground. A party also cannot rely on unavailability it brought about for the purpose of preventing the witness from attending or testifying. (Evidence Code § 240.)
For an absent witness, reasonable diligence depends on the practical record: when the prosecution began looking, which leads it followed, whether it pursued promising information, and how important the witness was. In People v. Cromer, delayed and incomplete efforts did not establish due diligence. A witness who is abroad presents a case-specific inquiry; People v. Herrera does not create one universal step that must be taken in every location. (People v. Cromer; People v. Herrera.)
Compare the preliminary-hearing transcript
For the prosecution’s former-testimony exception, section 1291(a)(2) requires that the defendant had the right and opportunity to cross-examine the witness at the earlier proceeding and had a similar interest and motive to develop that testimony. Review what topics were explored, what limits the judge imposed, what the defense knew at the time, and whether the earlier purpose matched the issues at trial. A preliminary hearing is not automatically adequate simply because cross-examination occurred. Section 1291(a)(1) separately addresses testimony previously offered by the party against whom it is now offered, so subsection (a)(2) is not the only route in every case. (Evidence Code § 1291.)
The statutory hearsay exception and the constitutional confrontation requirement are separate checks. Preliminary-hearing testimony is testimonial; a court must assess actual unavailability and the prior opportunity to cross-examine under the current confrontation framework. If admitted, section 1291(b) preserves ordinary evidence objections with exceptions for certain objections to the earlier questions’ form and for competency or privilege grounds that did not exist then. (People v. Herrera; Evidence Code § 1291.)
Preserve the issue
Ask counsel to obtain the certified transcript or recording, mark the exact proposed portions, review prior objections and rulings, and examine the prosecution’s witness-search chronology. Raise a specific objection before the testimony is read or played, and make sure the court rules on the record. This is different from obtaining a live out-of-state witness or arranging a conditional examination before trial.
For help with a California criminal trial evidence issue, contact the Law Offices of David S. Chesley. Call (800) 755-5174, or review the California criminal trial overview.