§ 34.03 FORMER TESTIMONY: FRE 804(B)(1)
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§ 34.03. FORMER TESTIMONY: FRE 804(b)(1)
Former testimony, sometimes called prior testimony, has a long common law history.24 Note also that previous testimony may be admissible under other rules.25
Rationale. Unlike other hearsay exceptions, former testimony is not based on any trustworthiness guarantee that is considered an adequate substitute for cross-examination. The exception requires an opportunity for cross-examination as well as testimony under oath. The only trial safeguard missing is the opportunity for the jury to observe the demeanor of the witness while testifying, and this could be supplied if the prior testimony has been videotaped. "Hence it may be argued that former testimony is the strongest hearsay and should be included under Rule 803."26
Nevertheless, the federal drafters placed the exception in Rule 804, thereby imposing an unavailability requirement. They justified this position by noting that the "opportunity to observe demeanor is what in a large measure confers depth and meaning upon oath and cross-examination."27 As the Supreme Court observed, "former testimony often is only a weaker substitute for live testimony."28 In addition, many other hearsay exceptions typically involve one or two statements — often a phrase or sentence. In contrast, former testimony may encompass days of previous testimony.
[A] Type of Proceeding
Under Rule 804(b)(1), testimony given at a trial, hearing, or deposition may be admitted. A retrial is an example. Moreover, preliminary hearing testimony may be admissible under this rule in criminal cases.29 Testimony given at an administrative proceeding may also qualify, as well as testimony at a motion to suppress in some cases.30
Grand jury. Grand jury testimony is not admissible against a criminal defendant under this rule because of the lack of an opportunity to examine the declarant. Neither the defendant nor a defense attorney is permitted in the grand jury room.31 In contrast, the prosecution is provided that opportunity, and some cases have ruled that grand jury testimony may be admissible against the government. The issue is whether the motive to examine the witness at the trial and the grand jury is similar (see below).
[B] Opportunity to Examine
The rule requires only an "opportunity" to examine, not actual examination. Failure to examine the declarant for tactical reasons does not matter: "It is that opportunity, rather than the scope or efficacy of its employment, which is important under Rule 804(b)(1)."32 Moreover, an opportunity for "direct" or "redirect" examination suffices; cross-examination is not required.33
[C] "Similar Motive" Requirement
There is no explicit requirement for "identity of issues" in both proceedings.34 Nevertheless, substantial identity of issues is an aspect of the similar motive requirement.35 If the issues are not substantially the same, the motive in examining the witness will often not be similar.36 Several factors determine whether a similarity of motive exists: "(1) the type of proceeding in which the testimony is given, (2) trial strategy, (3) the potential penalties or financial stakes, and (4) the number of issues and parties."37
Grand jury. The admissibility of grand jury testimony against the prosecution raises a significant issue. In United States v. Salerno,38 two immunized witnesses testified before a grand jury investigating racketeering. They claimed that neither they nor the defendants had participated in the alleged scheme. When called by the defense at trial, these witnesses asserted the Fifth Amendment privilege. The defense then offered their grand jury testimony as former testimony, arguing that the prosecution had had an opportunity to cross-examine them before the grand jury. The Second Circuit ruled that the prosecutor's motive was not critical where the government obtains immunized testimony in a grand jury proceeding from a witness who refuses to testify at trial. According to the court, "adversarial fairness" required admission of the grand jury testimony. The Supreme Court disagreed, finding that courts may not disregard the congressional language to achieve "adversarial fairness." The Court did not, however, decide the "similar motive" issue because the court of appeals had not considered it. Accordingly, the case was remanded. On remand, the Second Circuit ruled that the motives were not the similar.39
Several other appellate courts have addressed the issue.40 In United States v. Omar,41 the First Circuit agreed that grand jury testimony may fall within the purview of the former testimony rule in some cases.42 The court, however, also issued a caution because the prosecution's motive is often different at the grand jury. The court wrote:
Grand juries present a different face. Often, the government neither aims to discredit the witness nor to vouch for him. The prosecution may want to secure a small piece of evidence as part of an ongoing investigation or to compel an answer by an unwilling witness or to "freeze" the position of an adverse witness. In particular, discrediting a grand jury witness is rarely essential, because the government has a modest burden of proof, selects its own witnesses, and can usually call more of them at its leisure.43
While this argument has merit, the defense could make a comparable argument concerning preliminary hearing testimony, and yet such testimony has been admitted, even in face of a confrontation challenge.44
Guilty plea hearings. Before accepting a guilty plea, the judge must determine if (1) the plea is voluntary (no coercion or improper inducements), (2) the defendant understands the nature of the charged offense and the consequences of the plea, and (3) there is factual basis for the plea. This procedure usually requires the defendant to make incriminatory statements. The prosecution's motive to question a defendant in this setting, however, is weak.45
[D] "Against Whom" Requirement
The rule does not require "identity of parties," as had some common law cases. As long as the party against whom the former testimony is offered (or a predecessor in interest in a civil case) had an opportunity to examine the witness at the former hearing, the rule is satisfied.
Accordingly, only one of the parties has to have participated in the prior proceeding. For example, assume that defendant, a truck...
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