Division 2. Words and Phrases Defined - California Evidence Code Section 240
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California Laws > Evidence Code > Division 2. Words and Phrases Defined - California Evidence Code Section 240
240. (a) Except as otherwise provided in subdivision (b),
"unavailable as a witness" means that the declarant is any of the
(1) Exempted or precluded on the ground of privilege from
testifying concerning the matter to which his or her statement is
(2) Disqualified from testifying to the matter.
(3) Dead or unable to attend or to testify at the hearing because
of then-existing physical or mental illness or infirmity.
(4) Absent from the hearing and the court is unable to compel his
or her attendance by its process.
(5) Absent from the hearing and the proponent of his or her
statement has exercised reasonable diligence but has been unable to
procure his or her attendance by the court's process.
(6) Persistent in refusing to testify concerning the subject
matter of the declarant's statement despite having been found in
contempt for refusal to testify.
(b) A declarant is not unavailable as a witness if the exemption,
preclusion, disqualification, death, inability, or absence of the
declarant was brought about by the procurement or wrongdoing of the
proponent of his or her statement for the purpose of preventing the
declarant from attending or testifying.
(c) Expert testimony that establishes that physical or mental
trauma resulting from an alleged crime has caused harm to a witness
of sufficient severity that the witness is physically unable to
testify or is unable to testify without suffering substantial trauma
may constitute a sufficient showing of unavailability pursuant to
paragraph (3) of subdivision (a). As used in this section, the term
"expert" means a physician and surgeon, including a psychiatrist, or
any person described by subdivision (b), (c), or (e) of Section 1010.
The introduction of evidence to establish the unavailability of a
witness under this subdivision shall not be deemed procurement of
unavailability, in absence of proof to the contrary.
Last modified: February 16, 2015