If a declarant is unavailable, the court may admit a former testimony under which Rule?

If a declarant is unavailable, the court may admit a former testimony under which Rule?

• A. Rule 804(a) Unavailability
• B. Rule 805 Hearsay Within Hearsay
• C. Rule 804(b)(1) Former Testimony
• D. Rule 902 Self-Authenticating

Answer: (C)

When a declarant is unavailable, the test is whether the former testimony exception applies. The rule that governs admitting testimony given at a prior hearing, deposition, or other proceeding is the former testimony rule. For it to apply, the earlier testimony must have been given under oath, and the party against whom it is now offered must have had an opportunity and a similar motive to develop that testimony (typically through cross-examination or other questioning) in the earlier proceeding. The unavailability of the declarant is a prerequisite you establish under the unavailability rule, but the statute that actually allows admitting the prior testimony as evidence is the former testimony rule. The other options don’t fit because they address different concepts: unavailability in general, hearsay within hearsay, or self-authentication, none of which provide the specific mechanism for admitting previously given testimony when the declarant is unavailable.

When a declarant is unavailable, the test is whether the former testimony exception applies. The rule that governs admitting testimony given at a prior hearing, deposition, or other proceeding is the former testimony rule. For it to apply, the earlier testimony must have been given under oath, and the party against whom it is now offered must have had an opportunity and a similar motive to develop that testimony (typically through cross-examination or other questioning) in the earlier proceeding. The unavailability of the declarant is a prerequisite you establish under the unavailability rule, but the statute that actually allows admitting the prior testimony as evidence is the former testimony rule. The other options don’t fit because they address different concepts: unavailability in general, hearsay within hearsay, or self-authentication, none of which provide the specific mechanism for admitting previously given testimony when the declarant is unavailable.