In criminal proceedings, testimony related to a prior criminal trial, preliminary hearing, or hearing may be admitted if the witness meets certain conditions. Which of the following is NOT one of the listed conditions?

• A. The witness is unable to attend by reason of death, illness or incapacity.
• B. The witness cannot with due diligence be found.
• C. The witness can be located within the state and available for immediate testimony.
• D. The witness is outside the state or in federal custody and cannot with due diligence be brought before the court.

Answer: (C)

The key idea is that prior testimony from a witness can be admitted only when the witness is unavailable to testify in the current proceeding. Unavailability can arise if the witness is dead, ill, or incapacitated; if the witness cannot be found with reasonable diligence; or if the witness is outside the state or in federal custody and cannot be brought before the court with due diligence. The scenario where the witness can be located within the state and is available for immediate testimony describes a witness who is not unavailable. Since the rule requires unavailability for admitting prior testimony, this situation is not a valid ground for admitting prior testimony. In that case, the appropriate procedure would be to have the witness testify live. The other scenarios fit the unavailability grounds, so they would support admission of prior testimony.