Also known as: viva voce evidence · viva voce · oral evidence · viva voce testimony
Written by attorneys — see sources below.
Oral testimony given by a witness speaking in open court under oath. The testimony must rest on the witness's personal knowledge and is subject to cross-examination.
Virgil Vaughn and Vera Vargas signed a ten-year lease for retail space. After a fire destroyed the only signed copy, Virgil offers testimony from two witnesses who attended the signing and recall the fixed-rent term. The court permits the testimony to establish the lease contents.
Vera Vu sues Venture Holdings in federal court. To oppose the defendant's forum non conveniens motion, Vera presents live testimony from an employee describing the company's contacts with the chosen forum. The court weighs the testimony in deciding whether to retain jurisdiction.
In May 1930 the Van Sweringen Corporation issued $30,000,000 in notes under an indenture naming Guaranty Trust Co. of New York as trustee with power to enforce noteholders' rights. In October 1930 Guaranty and other banks advanced large sums to companies affiliated with the Corporation and controlled by the Van Sweringens. When the Corporation could not meet its obligations, Guaranty participated in an exchange plan under which noteholders could surrender their notes for cash equal to 50 percent of face value plus twenty shares of Van Sweringen stock per $1,000 note; the offer remained open until December 15, 1931. In 1934 respondent York received $6,000 of the notes as a gift from a donor who had not accepted the exchange offer. In April 1940 three accepting noteholders filed the Hackner suit in federal court charging Guaranty with fraud and misrepresentation in connection with the exchange. York's motion to intervene was denied, and summary judgment for Guaranty was affirmed on appeal. On January 22, 1942, after her exclusion from the Hackner litigation, York filed the present class action in the United States District Court for the Southern District of New York on behalf of non-accepting noteholders. The complaint, resting exclusively on diversity of citizenship, alleged that Guaranty had breached its trust by failing to protect noteholders' interests when it assented to the exchange offer and by failing to disclose its own self-interest. The district court granted Guaranty's motion for summary judgment on the authority of the Hackner decision. The Circuit Court of Appeals reversed, holding that a federal court sitting in equity is not required to apply the New York statute of limitations that would govern an identical suit in the New York state courts. The Supreme Court granted certiorari.
View caseViolet Vidal is charged with insurance fraud after a death. The prosecution offers live testimony from a hotel clerk recounting the insured's statements about his travel plans the day before he disappeared. The court admits the testimony to prove the declarant's state of mind.
In March 1879, John W. Hillmon, the insured under several life insurance policies, was reported to have died during a trip through southern Kansas. His widow brought three separate actions in the Circuit Court of the United States for the District of Kansas against the Mutual Life Insurance Company and other insurers to recover the policy proceeds. The central dispute at trial was the identity of the body found at Crooked Creek on the night of March 18, 1879. The plaintiff introduced evidence that Hillmon and a companion named Brown had left Wichita, Kansas, on or about March 5, 1879, while traveling in search of a cattle ranch site, and that Hillmon had been accidentally killed at their camp on March 18. The defendants introduced evidence that a man named Walters had left his home and betrothed in Iowa in March 1878 and remained in Kansas until March 1879. During that period Walters corresponded regularly with his family and betrothed. The last letters received from him were one postmarked at Wichita on March 2 and received on March 3, and another received about March 4 or 5 and dated at Wichita a day or two earlier. He had not been heard from since. The Circuit Court consolidated the three actions for trial. The defendants offered two letters written by Walters on the first days of March 1879, which the court excluded. After verdicts for the plaintiff, the defendants appealed to the Supreme Court.
View caseViktor Voronin is tried for perjury. The government calls a complainant to give live testimony describing the substance of the defendant's earlier statements at an administrative hearing. The court admits the recollection after the transcript is shown to be unavailable.
The appellants in these consolidated cases are honorably discharged veterans of World War II who sought the veterans' property-tax exemption provided by Article XIII, section 1 1/4 of the California Constitution. Under California law applicants for the exemption must annually complete a standard form of application and file it with the local assessor. The form was revised in 1954 to add an oath by the applicant. The oath stated that the signer does not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means. Nor does the signer advocate the support of a foreign government against the United States in event of hostilities. Each appellant refused to subscribe the oath and struck it from the form which he executed and filed for the tax year 1954-1955. The respective county assessors denied the exemptions solely because of the refusal to execute the oath. The denials rested on Article XX, section 19 of the California Constitution, adopted at the general election of November 4, 1952. That provision states that no person or organization advocating the overthrow of government by force or violence shall receive any exemption. It also bars those advocating support of a foreign government against the United States in the event of hostilities from receiving exemptions from taxes imposed by the state or its political subdivisions. To implement the amendment the Legislature enacted section 32 of the Revenue and Taxation Code. Section 32 requires every claimant for a property-tax exemption other than the householder's exemption to include on the claim a declaration that the claimant does not engage in the activities described in the constitutional amendment. Appellant in No. 483 sued for declaratory relief in the Superior Court of Contra Costa County. Appellant in No. 484 sued in the Superior Court for the City and County of San Francisco to recover taxes paid under protest and for declaratory relief. The trial courts reached differing results. The Supreme Court of California sustained the assessors' actions against the appellants' claims of constitutional invalidity, adopting the reasoning of its opinion in the companion case First Unitarian Church v. County of Los Angeles. The United States Supreme Court noted probable jurisdiction of the appeals from the judgments of the California Supreme Court.
View caseVeronica Villanueva is charged with murdering a witness. At a pretrial hearing the prosecution presents live testimony from family members recounting the victim's statements identifying the defendant. The court admits the statements after finding the defendant caused the witness's unavailability.
On September 29, 2002, Dwayne Giles shot his ex-girlfriend Brenda Avie six times outside the garage of his grandmother’s house. Giles’ niece heard the two speaking in conversational tones before Avie yelled “Granny” several times and a series of gunshots sounded. Giles’ niece and grandmother ran outside and saw Giles standing near Avie with a gun in his hand. Avie had not been carrying a weapon. Giles fled the scene and was apprehended by police about two weeks later. Three weeks before the shooting, Avie spoke to a police officer responding to a domestic-violence report. Avie, who was crying, told the officer that Giles had accused her of having an affair, grabbed her by the shirt, lifted her off the floor, choked her, punched her in the face and head, and threatened her with a folding knife. At trial, prosecutors sought to introduce these statements. Over Giles’ objection, the trial court admitted them under California Evidence Code section 1370. Giles testified that he had acted in self-defense. He described Avie as jealous and violent, said she had threatened to kill him and his new girlfriend on the day of the shooting, and claimed she charged at him before he fired. A jury convicted Giles of first-degree murder. While Giles’ appeal was pending, the Supreme Court decided Crawford v. Washington. The California Court of Appeal held that admission of Avie’s statements did not violate the Confrontation Clause because Giles had forfeited his confrontation right by committing the murder. The California Supreme Court affirmed on the same ground. The U.S. Supreme Court granted certiorari.
View caseVive voce evidence consists of a witness speaking directly in court. A transcript is a written record of prior testimony. Courts treat the live testimony as primary when the witness is available.
Supporting sources
When a memorandum satisfying the statute of frauds is lost or destroyed, its contents may be proved by oral testimony of those who saw it executed.
Supporting sources
Yes. A witness must testify from personal knowledge and do so orally in court unless an exception permits otherwise.
No. Loss of the memorandum does not prevent enforcement if its contents can be established by oral evidence or an unsigned copy.
Supporting sources
…between the time of examination and the trial of the prisoner, [the Marian deposition] may be substituted in the room of that viva voce testimony which the deponent, if living, could alone have given, and is admitted of necessity as evidence of the fact”); J. Archbold, A Summary of the Law Relative to Pleading and Evidence…