Tried a particularly litigious inmate (ask the 12th COA) for theft from elderly and sentenced to 62yrs under 3 strikes law. COA overturned punishment and remanded for new punishment hearing. Victim is now deceased. I have the transcript from the guilt/innocence portion of original trial. My understanding is that I introduce the record and then have an investigator take the stand and I question him and he answers like the victim. Is that correct? Also, do I have to present all of the victim's testimony or can I pick and choose what I present. Defendant represented himself in first trial and can be quite confusing and obnoxious. Also, could I do testimony from witnesses who are available that way or would I have to recall them.
Of course, the witness might prefer otherwise, but generally why would you ever substitute someone else to read a transcript for an available witness? Despite any inconsistencies, the live witness will be more meaningful to a jury. Also look at Loun v. S., 273 sw3d 406 (6/2008)(about not calling out-of-state witness who had already testified.
Posts: 444 | Location: Austin, Texas, USA | Registered: January 06, 2010
plus, the prior testimony is only excepted from the hearsay rule if the witness is unavailable. So if the other witnesses are still around, I think you have to call them again, which, as John points out, is always better anyway
Yes, you're right on the deceased victim. She's unavailable, and the defendant previously had a chance to confront her. I don't see why you would have to read everything to the jury, including cross, but just be aware that the defendant will be able to read the rest of it if you don't.
Posts: 1116 | Location: Waxahachie | Registered: December 09, 2004