During the trial, you received deposition testimony that was [read from the deposition transcript/[describe other manner presented, e.g., shown by video]]. A deposition is the testimony of a person taken before trial. At a deposition the person is sworn to tell the truth and is questioned by the attorneys. You must consider the deposition testimony that was presented to you in the same way as you consider testimony given in court.
New September 2003; Revised December 2012
Sources and Authority
- Code of Civil Procedure section 2002 provides:
The testimony of witnesses is taken in three modes:
1. By affidavit;
2. By deposition;
3. By oral examination.
- Code of Civil Procedure section 2025.620 provides, in part: “At the trial . . . any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition . . . so far as admissible under the rules of evidence applied as though the deponent were then present and testifying as a witness, in accordance with the following [rules set forth in this subdivision].”
- “Admissions contained in depositions and interrogatories are admissible in evidence to establish any material fact.” (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 380 [121 Cal.Rptr. 768].)
- Evidence Code section 1291(a) provides:Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:
(1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or
(2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.
- Evidence Code section 1292(a) provides:Evidence of former testimony is not made inadmissible by the hearsay rule if:(1) The declarant is unavailable as a witness;(2) The former testimony is offered in a civil action; and(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.
- Evidence Code section 1290(c) defines “former testimony” as “[a] deposition taken in compliance with law in another action.”
- “The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds the witness unavailable as a witness within the meaning of section 240 of the Evidence Code.” (Chavez v. Zapata Ocean Resources, Inc. (1984) 155 Cal.App.3d 115, 118 [201 Cal.Rptr. 887], citation omitted.)
(CACI are the approved jury instructions from the Judicial Council of California. Jury instructions are read to the jury by the judge and establish the law the jury must follow in deciding the case. A partner of Cheong & Denove has been formally recognized as one of the attorneys who assisted the task force in the preparation of these jury instructions.)
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