Rufo v. OJ Simpson - Right Of Publicity

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86 Cal. App. 4th 573, *604; 2001 Cal. App. LEXIS 41, **56;
103 Cal. Rptr. 2d 492, ***514; 2001 Cal. Daily Op. Service 759
Fuhrman by the prosecution [***514] in the criminal case was not a
substitute
for plaintiffs' right to cross-examine in the present case.
Furthermore,
plaintiffs' objection was not too late.
[*605]
Evidence Code Section 1292
Evidence Code section 1292, subdivision (a) provides: "Evidence of
former
testimony is not made inadmissible by the hearsay rule if: [P] (1) The
declarant
is unavailable as [**57] a witness; [P] (2) The former testimony is
offered in
a civil action; and [P] (3) The issue is such that the party to the
action or
proceeding in which the former testimony was given had the right and
opportunity
to cross-examine the declarant with an interest and motive similar to
that which
the party against whom the testimony is offered has at the hearing."
(Italics
added.)
This section "provides a hearsay exception for former testimony
given at the
former proceeding by a person who is now unavailable as a witness when
such
former testimony is offered against a person who was not a party to the
former
proceeding but whose motive for cross-examination is similar to that of
a person
who had the right and opportunity to cross-examine the declarant when
the former
testimony was given. . . . [P] . . . The trustworthiness of the former
testimony
is sufficiently guaranteed because the former adverse party had the
right and
opportunity to cross-examine the declarant with an interest and motive
similar
to that of the present adverse party. Although the party against whom
the former
testimony is offered did not himself have an opportunity to crossexamine
the
witness on [**58] the former occasion, it can be generally assumed
that most
prior cross-examination is adequate if the same stakes are involved."
(Assem.
Com. on Judiciary, com. on Assem. Bill No. 333 (1965 Reg. Sess.)
reprinted at