Can a defendant's confrontation right be violated by admitting the testimony of an unavailable witness at a preliminary hearing?

California, United States of America


The following excerpt is from People v. Nguyen, C063440, Super. Ct. No. 08F06969 (Cal. App. 2011):

confrontation is not absolute. [Citations.] 'Traditionally, there has been "an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant [and] which was subject to cross-examination . . . ." [Citation.]' [Citation.] Pursuant to this exception, the preliminary hearing testimony of an unavailable witness may be admitted at trial without violating a defendant's confrontation right. [Citation.]" (People v. Herrera (2010) 49 Cal.4th 613, 621.) When the requirements of Evidence Code section 1291 are met, a defendant's constitutional right of confrontation is not violated by the admission of former testimony. (Herrera, at p. 621.)

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