If I need to prove in California criminal court that the defendant did not reside at a certain address in 2017, it seems best to get the true "main resident" to testify in court: "I have never seen that man in my life".

But, in lieu of testimony, how can the same proof be made without the "main resident" coming to court? Would a sworn affidavit work in this case or is it dismissed as hearsay? More generally, how would the best lawyers establish that the defendant never lived at that address if no witnesses were able to come to court?

  • The other side would have the right to cross-examine the witness, which wouldn't be possible if you only have an affadavit. If this is a prosecution witness, there's also the confrontation clause which the defendant could likely invoke to require the witness to actually appear. For a defense witness, it might be possible for lawyers for both sides to travel to the witness and get a deposition; this happens in civil cases, but I don't know about criminal cases. – Nate Eldredge Feb 15 '18 at 18:44
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    What do you mean "not able to come to court"? The witness could be subpoena'ed and ordered to appear in court to testify. Are they in ill health and unable to travel, or what? Or are they beyond the court's jurisdiction? – Nate Eldredge Feb 15 '18 at 18:46
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    Well, elderly and ill enough that minimal burden would be nice. Of course, he still could travel, but I'm looking for alternatives with this question. A deposition is a possible option, thank you. A similar option might be court testimony by video conference. You could answer my question saying that just these two options are available and I'd accept it, though I wish there were some other trick... – bobuhito Feb 15 '18 at 19:10
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    A criminal case is between the prosecuting attiorney and the defendant; which are you? – Tim Lymington Mar 17 '18 at 23:07
  • Many courts allow testimony by telephone if a motion requesting it is made in advance and other procedural steps are followed. – ohwilleke Mar 21 '18 at 13:49

Assuming the unavailability of the witness was not caused by the defendant, attempts to introduce the affidavit would be deemed hearsay and furthermore inconsistent with the defendant's right to face their accuser.

The best recourse would be to show the actual place the defendant lived. You could also introduce other circumstantial evidence like that other people only saw the defendant at another location.

You could also try a hand at judicial notice, but generally as I understand this requires consent from both parties with some exceptions.

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  • Showing "the actual place the defendant lived" probably also requires witness testimony, so I don't really like that solution, but since you clarify the hearsay problem, I will accept it if nobody else has a better idea. – bobuhito Feb 18 '18 at 6:43
  • There are some exceptions to the hearsay rule, one of which applies to reputation as to ownership of real property. It is possible that this exception could be applied. If not, hearsay would be a problem. Confrontation clause issues can also arise as well in criminal cases, but not for evidence presented by a defendant. – ohwilleke Mar 21 '18 at 13:48
  • @ohwilleke yes confrontation only affects evidence presented against the defendant. Also I looked into the exceptions you cited. I'm not sure the ones directly concerning property would apply as they seem to apply when specific documents are created, not affidavits. However, FRE 803, 19 or 20 may possible apply in some convoluted cases. – Viktor Mar 21 '18 at 14:15

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