Fresno, CA asked in Domestic Violence for California

Q: Can the testimony of a domestic violence victim in CA be used at trial, if the victim is unable to testify at the trial?

The defendant has been held to answer on 21 charges of domestic violence, 13 of those are felonies.

The victim gave testimony for 6 hours during the prelim. If the victim is unavailable to testify in court at the trial will the prior testimony given during the prelim by used in lieu.

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1 Lawyer Answer
James L. Arrasmith
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  • Domestic Violence Lawyer
  • Sacramento, CA
  • Licensed in California

A: In California, the use of a domestic violence victim's testimony from a preliminary hearing at trial, when the victim is unavailable to testify, depends on specific legal criteria. Generally, the Sixth Amendment's Confrontation Clause guarantees a defendant's right to confront witnesses against them. This means that for prior testimony to be admissible at trial, certain conditions must be met.

First, the defendant must have had an opportunity to cross-examine the victim during the preliminary hearing. This is crucial because it upholds the defendant’s right to confront their accuser. If this cross-examination occurred, the testimony is more likely to be considered admissible in the victim's absence.

Second, the court must find that the victim is genuinely unavailable to testify at trial. This doesn't just mean inconvenience or reluctance to appear; it refers to situations where the victim cannot be present due to reasons like serious illness or being out of jurisdiction and unable to return.

If these conditions are met, the victim's prior testimony may be used at trial. However, each case is unique, and the decision ultimately rests with the judge, who will consider the specific circumstances of the case and the legal standards that apply.

Given the complexity and the serious nature of domestic violence cases, it is advisable to seek legal counsel to navigate these issues. An experienced attorney can provide guidance on the admissibility of evidence and how best to proceed in such a situation.

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