Evidence - Rule 804(B)(1) – Prior Testimony

United States v. Sklena, 692 F.3d 725 (7th Cir. 2012)

The defendant sought to introduce the prior testimony of his deceased partner that was given during a CFTC deposition. The government argued the DOJ was not the “same party” as the CFTC and therefore Rule 804(b)(1) did not authorize the prior testimony. The Seventh Circuit disagreed. The CFTC had the same motive to cross-examine the witness in the CFTC proceeding as the prosecutors in the criminal case and the CFTC, a governmental agency, can be considered to be the “same party” for purposes of Rule 804(b)(1) as the Department of Justice. Therefore the prior testimony was admissible.

United States v. Duenas, 691 F.3d 1070 (9th Cir. 2012)

The defendant was charged with being a member of a drug conspiracy. A law enforcement officer testified at a hearing that was focused on the admissibility of the defendant’s post-arrest statement. The officer was killed by a drunk driver prior to trial. The Ninth Circuit held that the defendant did not have a “similar motive and opportunity” to question the officer at the earlier hearing and his testimony from that hearing should not have been admitted at the trial. At the suppression hearing, the question was whether the defendant’s statements were voluntarily given and whether his statement was obtained in violation of Miranda, while at the trial, the defendant would have questioned the officer about the contents of the statement.

Cross v. Hardy, 632 F.3d 356 (7th Cir. 2011)

In the first state trial, the victim testified that the defendant raped her. The jury failed to reach a verdict. The “victim” could not be found prior to the second trial, so her testimony was simply read to the jury at the second trial. The Seventh Circuit held that the state failed to exercise sufficient due diligence to locate the victim and using her prior testimony violated the defendant’s Confrontation Clause rights. “Given the importance of A.S.’s testimony, the state was obligated to exert great effort to locate her . . . If there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation.” THE SUPREME COURT REVERSED ON AEDPA-DEFERENCE GROUNDS.

United States v. McFall, 558 F.3d 951 (9th Cir. 2009)

The defendant sought to introduce the grand jury testimony of a witness on the theory that his prior testimony was subjected to the cross-examination of the government and was thus admissible under Rule 804(b)(1). Though the government may not have had the exact same motive in cross-examining the witness at the grand jury, the trial court erred in excluding the testimony. The Ninth Circuit rejected the stricter rule followed by the Second Circuit in United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993), which requires a virtually identical interest, as opposed to “similar” motive in cross-examining the witness during the prior proceeding.

United States v. Yida, 498 F.3d 945 (9th Cir. 2007)

If the government deports a witness, it cannot then claim that the witness is “unavailable” and attempt to use the witness’s testimony from a prior trial pursuant to Rule 804(b)(1): “Implicit in the duty to use reasonable means to procure the presence of an absent witness (Rule 804(a)(5)) is the duty to use reasonable means to prevent a present witness from becoming absent.”

United States v. Omar, 104 F.3d 519 (1st Cir. 1997)

Under certain circumstances, the defense may offer the grand jury testimony of a witness who is unavailable for trial. This requires a showing that the government had the same motive during the grand jury to cross-examine the witness as it would have at trial. The government in this case did not have the same motive, so the evidence was properly excluded.

United States v. Salerno, 937 F.2d 797 (2d Cir. 1991)

Rule 804(b)(1) provides that if a witness is unavailable, his prior sworn testimony is admissible, assuming that the party against whom the testimony is introduced had an opportunity and a similar motive to cross-examine the witness. Here, the defense sought to introduce the exculpatory grand jury testimony of two witnesses. The witnesses relied on their Fifth Amendment rights at trial and refused to testify, thus, they were unavailable; also, the government refused to grant the witnesses immunity. The issue on appeal was whether the government had a “similar motive” when the witnesses were “cross-examined” at the grand jury? While the court agrees that the government had no motive to cross-examine the witnesses at the grand jury (the government contended that the witnesses were known to be committing perjury), because the government “procured” the witnesses’ unavailability by refusing to grant them immunity at trial, this requirement would be relaxed. Where, as here, the unavailability of a witness can be remedied by the party against whom the testimony is being offered (as opposed, for example, to cases in which the witness is dead), that party cannot complain that it did not have a similar motive in the prior proceeding to cross-examine the witness. The United States Supreme Court reversed: the Rule specifically requires that the party against whom the testimony is offered must have had a similar motive to cross-examine the witness at the earlier proceeding. The Second Circuit then again considered the case, 974 F.2d 231, and again reversed the conviction, concluding that the prosecutor did have the same motive to cross-examine the witnesses at the grand jury as he had at trial. The government had a meaningful opportunity to cross-examine the witnesses at the grand jury and, in fact, did cross-examine the witnesses in that forum. The Second Circuit then reconsidered the case again, en banc, United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1997), and held that the government did not have a similar motive during the grand jury to develop the cross-examination and therefore, the hearsay testimony was not admissible. The en banccourt held as follows: “We do not accept the position that the test of similar motive is simply whether at the two proceedings the questioner takes the same side of the same issue. If a fact is critical to a cause of action at a second proceeding but the same fact was only peripherally related to a different cause of action at a first proceeding, no one would claim that the questioner had a similar motive at both proceedings to show that the fact had been established or disproved.” This applies to the grand jury testimony.

United States v. Foster, 128 F.3d 949 (6th Cir. 1997)

An alleged co-conspirator testified at the grand jury, under a grant of immunity, that the defendant was not in any way involved with any drug dealing. The witness could not be found at trial, however – possibly because of threats made by the prosecutor to the witness’s attorney about the dangers of testifying perjuriously. The trial judge erred in denying the defendant’s request to introduce the witness’s grand jury testimony. With regard to the unavailability requirement, the defense attorney’s late effort to secure the witness’s presence was explained in part by the government’s tardy disclosure of the grand jury transcripts to the defense.

United States v. Flenoid, 949 F.2d 970 (8th Cir. 1991)

The trial court erred in refusing to allow defendant to introduce the testimony of a witness from one of the prior mistrials. The witness had been cross-examined by the government and the defendant made an adequate showing that the witness could not be located.

United States v. Curbello, 940 F.2d 1503 (11th Cir. 1991)

The trial court failed to demonstrate that the declarant was “unavailable” thus justifying the use of his out-of-court statement against penal interest. The only proof of unavailability was the statement of the prosecutor that the declarant was in prison in the Bahamas. This is not sufficient to prove unavailability: The government must show that it could not procure the declarant’s attendance by process or other reasonable means. The government had to show that efforts were made to contact the Bahamian government about extradition or other means of procuring the witness’s attendance. The government failed to show that a deposition or letters rogatory were not practical.