2. Former Testimony (FRE 804(b)(1))
a. Justification
Former testimony has a high degree of trustworthiness, since it was given during formal proceedings and under oath by a witness subject to cross-examination.
b. Requirements
i) The unavailability of the declarant
ii) Testimony made at a hearing or in a deposition during the same or different proceeding
It is interpreted that a “hearing” includes any setting in which sworn testimony by a witness is taken, and a “proceeding” includes any official inquiry conducted in a manner authorized by law whether judicial, administrative, legislative, investigative, or inquisitorial.
This exception covers a prior trial (civil or criminal), a preliminary hearing/ a suppressing hearing in a criminal case. But it does not cover affidavits and statements made to police or other law enforcement officials during investigations.
1) Under oath
Though not specifically stated in FRE 804(b)(1) itself, the term “testimony” implies it.
2) Opportunity for cross-examination
The party against whom the evidence is now offered must have had a reasonable opportunity to cross-examine the declarant at the time of the former testimony.
Thus, the grand jury testimony of an unavailable declarant is not admissible as former testimony against the accused at trial, because grand jury proceedings do not provide the opportunity for cross-examination.
But an actual examination is not required.
iii) Similar motive
It is because if the adverse party had no incentive to cross-examine- for instance, because the issues were different, or the stakes were very different.
Three factors are considered to determine the issue of similar motive: (1) similarity of issues (; (2) similarity of stakes ($200 v. $300,000); and (3) same parties.
iv) Identity of parties
1) Applies only to opponent
The proponent of the former testimony need not have been a party to the earlier proceeding. Only the opponent must have been present.
2) Criminal Cases
The party against whom the former testimony is offered must have been present in the earlier proceeding, without respect to whether that party is the defendant or the prosecutor. (Regarding the defendant, it is related to his Confrontation Clause rights.)
Thus a former testimony may not be offered against a criminal defendant who was not present, even if another person – e.g., a co-defendant- was present at the prior proceeding and had a highly similar motive to cross-examine.
3) Civil Cases
Even if the opponent was not present, the former testimony can be used as long as the present opponent’s “predecessor in interest” must have had an opportunity and similar motive to cross-examine in the earlier proceeding.
A “predecessor in interest” means a person with a like motive to develop the same testimony about the same material facts. Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3rd. Cir. 1978). That is, it is very broadly interpreted.
A person in privity with a party to the former action includes a person of grantor-grantee, testator-executor, life tenant-remainderman, joint tenants.
Friday, July 27, 2012
Intro to the Federal Rules of Evidence - 67
E. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE (FRE 804)
1. Intro
a. Definition of unavailability
FRE 804(b) lists 5 categories: (1) privilege; (2) refusal; (3) lack of memory; (4) inability; (5) absence. But if one of these is due to the proponent’s fault, unavailability is not established.
Regarding “absence,” it is not enough to show that the declarant is beyond the reach of process.
The person offering the out-of-court declaration must show that it was also not possible to procure the witness’s attendance by other means (e.g., persuasion).
For the exceptions given in FRE 804(b)(2), (3), and (4), the person offering the out-of-court declaration in a federal trial must also show that attempts to take the declarant’s deposition were unsuccessful.
b. Constitutional problems
A witness will be deemed sufficiently unavailable not to violate a criminal defendant’s Confrontation Clause rights if the state shows (1) the witness is beyond that state’s own process; and (2) either the state made a good-faith effort to procure the witness’ presence by means other than process, or such efforts would have been very unlikely to succeed.
1. Intro
a. Definition of unavailability
FRE 804(b) lists 5 categories: (1) privilege; (2) refusal; (3) lack of memory; (4) inability; (5) absence. But if one of these is due to the proponent’s fault, unavailability is not established.
Regarding “absence,” it is not enough to show that the declarant is beyond the reach of process.
The person offering the out-of-court declaration must show that it was also not possible to procure the witness’s attendance by other means (e.g., persuasion).
For the exceptions given in FRE 804(b)(2), (3), and (4), the person offering the out-of-court declaration in a federal trial must also show that attempts to take the declarant’s deposition were unsuccessful.
b. Constitutional problems
A witness will be deemed sufficiently unavailable not to violate a criminal defendant’s Confrontation Clause rights if the state shows (1) the witness is beyond that state’s own process; and (2) either the state made a good-faith effort to procure the witness’ presence by means other than process, or such efforts would have been very unlikely to succeed.
Intro to the Federal Rules of Evidence - 66
i. Judgment of Previous Conviction (FRE 803(22))
i) Intro
A certified copy of a judgment is always admissible proof that such judgment has been entered.
The problem is to what extent the facts adjudicated in the former proceeding can be introduced to prove facts in the present case.
ii) Justification
The high degree of reliability of a criminal judgment.
iii) Requirements
1) Criminal judgments
This exception applies only to prior criminal convictions. A prior judgment in a civil case is not included.
2) Inapplicability of this exception to prior acquittal
This exception does not apply to records of prior acquittals. The reason is that a criminal acquittal may establish only that the state did not prove the defendant guilty beyond a reasonable doubt, whereas the evidentiary standard is lower in civil cases.
3) Any fact essential to sustain the judgment
a) Use in subsequent civil case
It is permitted to use the prior criminal conviction of the defendant or of a third person to prove some fact that is relevant to the civil case.
b) Conviction of third person not usable in criminal case
“… but not including … for purposes other than impeachment, judgments against persons other than the accused….”
Where the current proceeding is a criminal trial, it would probably be unconstitutional for the government to use a third person’s conviction as part of its case in chief. Against a third person, however, the government may use prior convictions only for impeachment.
c) Minor crimes
“… a person guilty of a crime punishable by death or imprisonment in excess of one year…”
Misdemeanor convictions are not covered based on the theory that, when faced with a minor conviction, the defendant may have found it more sensible to pay a fine rather than litigate the charges, even though he was in fact innocent.
iv) Prior civil judgments
1) Inadmissible in criminal proceeding
A civil judgment is clearly inadmissible in a subsequent criminal proceeding because of the differing standards of proof.
2) Generally inadmissible in civil proceeding
Inadmissibility is a general rule. But there are exceptions such as FRE 803 (23).
i) Intro
A certified copy of a judgment is always admissible proof that such judgment has been entered.
The problem is to what extent the facts adjudicated in the former proceeding can be introduced to prove facts in the present case.
ii) Justification
The high degree of reliability of a criminal judgment.
iii) Requirements
1) Criminal judgments
This exception applies only to prior criminal convictions. A prior judgment in a civil case is not included.
2) Inapplicability of this exception to prior acquittal
This exception does not apply to records of prior acquittals. The reason is that a criminal acquittal may establish only that the state did not prove the defendant guilty beyond a reasonable doubt, whereas the evidentiary standard is lower in civil cases.
3) Any fact essential to sustain the judgment
a) Use in subsequent civil case
It is permitted to use the prior criminal conviction of the defendant or of a third person to prove some fact that is relevant to the civil case.
b) Conviction of third person not usable in criminal case
“… but not including … for purposes other than impeachment, judgments against persons other than the accused….”
Where the current proceeding is a criminal trial, it would probably be unconstitutional for the government to use a third person’s conviction as part of its case in chief. Against a third person, however, the government may use prior convictions only for impeachment.
c) Minor crimes
“… a person guilty of a crime punishable by death or imprisonment in excess of one year…”
Misdemeanor convictions are not covered based on the theory that, when faced with a minor conviction, the defendant may have found it more sensible to pay a fine rather than litigate the charges, even though he was in fact innocent.
iv) Prior civil judgments
1) Inadmissible in criminal proceeding
A civil judgment is clearly inadmissible in a subsequent criminal proceeding because of the differing standards of proof.
2) Generally inadmissible in civil proceeding
Inadmissibility is a general rule. But there are exceptions such as FRE 803 (23).
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