Under the exception for testimony from a prior trial of the same subject matter, which is NOT a proper basis for admitting the witness's testimony?

• A. The witness is not available due to death, age, sickness, infirmity or imprisonment.
• B. The witness is more than 100 miles from the place of trial, or out of state, unless the absence was procured by the party offering the testimony.
• C. Attendance can be procured with reasonable diligence of the party offering the testimony.
• D. Attendance cannot be procured despite diligent efforts of the party offering the testimony.

Answer: (C)

The key idea is when you can admit testimony from a prior trial as an exception, you must show that the witness is not available to testify at the current trial and that reasonable efforts have been made to secure attendance. If attendance can be obtained with reasonable diligence, you don’t rely on the former testimony exception—you would have the witness appear in person or be able to compel attendance at the current trial.

So, the scenario that isn’t a proper basis for admitting the prior-testimony evidence is the one where attendance can be procured with reasonable diligence. In that situation, the witness can and should be brought to trial, making the former testimony rule unnecessary. The other bases describe true forms of unavailability—death, illness, infirmity, imprisonment, or distance beyond a practical reach (with the caveat that the absence isn’t caused by the party offering the testimony), or a situation where despite diligent efforts attendance still cannot be procured. Those align with the conditions that justify admitting former testimony from a prior proceeding.