To use a deposition as former testimony, what requirement must be met regarding the deponent?

To utilize a deposition as former testimony in a subsequent trial, it is essential that the deponent is unavailable at the time of the trial. This means that if the deponent cannot be present to testify because of reasons such as illness, death, or other valid circumstances, their prior deposition testimony can be admitted as evidence. This requirement ensures that parties have the opportunity to present relevant evidence even if a witness is not available to provide live testimony, maintaining fairness in judicial proceedings.

The unavailability of the deponent serves a critical function in allowing the court to consider the deposition's content while ensuring that the procedural safeguards associated with cross-examination, witness presence, and credibility evaluation are preserved as much as possible under the circumstances. This standard aligns with the rules of evidence which govern hearsay exceptions and the use of depositions.

In instances where the deponent is present, there would typically be no need to rely on the deposition since the live testimony could be obtained directly. Therefore, focusing on the unavailability of the deponent is a key factor in the admissibility of deposition testimony as former testimony.