Intro to the Federal Rules of Evidence - 68

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.