Evidence Rules (PDF)

**Rule 803(14)** - Allows the record of documents affecting property interests as hearsay exceptions, providing evidence of ownership or property-related matters. **Rule 803(15)** - Permits statements within documents impacting property interests to be admissible. **Rule 803(16)** - Accepts \"...

**Rule 803(14)** - Allows the record of documents affecting property interests as hearsay exceptions, providing evidence of ownership or property-related matters. **Rule 803(15)** - Permits statements within documents impacting property interests to be admissible. **Rule 803(16)** - Accepts \"ancient\" documents (prepared before January 1, 1998, with proven authenticity) as an exception due to the reliability of such records over time. **Rule 803(17)** - Allows market reports and publicly relied-upon commercial publications as evidence. **Rule 803(18)** - Permits statements in treatises, periodicals, and pamphlets as exceptions. In *Compton v. Davis Oil Co.*, the District Court for Wyoming addressed the admissibility of specific documents as evidence in a quiet title action, which was a dispute among potential heirs over a mineral estate owned by the deceased Dave Lewis. The key issue revolved around determining whether Dave Lewis was married to Nettie Lewis at the time of his death in 1935. If they were married, the property would pass to Nettie and her heirs; if not, it would pass to Dave's siblings. The court relied on a combination of evidence to determine the marital status, specifically recitals in two warranty deeds and statements within Dave Lewis's death certificate. Both warranty deeds listed Dave and Nettie as husband and wife, and the death certificate, signed by Lonnie Lewis, also identified Nettie as Dave\'s spouse. These documents, though hearsay, were admitted under Rule 803 exceptions, particularly under: - **Rule 803(14)**: This rule allows records of documents that purport to affect an interest in property to be admitted as evidence. The deeds were considered trustworthy as they were executed for significant property transactions and were believed to reflect an accurate marital relationship. - **Rule 803(15)**: This rule permits statements within property-affecting documents to be admitted as proof. Statements within the deeds and death certificate concerning Dave and Nettie's marital status fell within this rule, supporting the assertion that they were married. - **Rule 803(16)**: Under this rule, ancient documents---those created before January 1, 1998---are admissible if their authenticity is established. The deeds and death certificate, as ancient documents, were deemed reliable, partly because other direct evidence was unavailable due to the passage of time. The court noted that the Lewis family's conduct over the decades following Dave's death further reinforced the reliability of these documents. From 1935 until 1972, Nettie and her heirs acted as if they held title to the mineral estate, without any objection from Dave's siblings. Their silence and lack of assertion of ownership rights over the property suggested an implicit acknowledgment of Nettie's title. The court highlighted several reasons for the reliability of ancient documents in cases like this. Due to the inevitable loss of witnesses and memory over time, ancient records become necessary substitutes for live testimony. Such documents are seen as more reliable than oral statements due to the lack of immediate motives to distort the truth in property transactions and their formal nature, which suggests careful consideration. Furthermore, ancient records remove the risk of transmission errors that oral statements may introduce over time. In conclusion, the court ruled in favor of the plaintiff, finding that Dave and Nettie Lewis were indeed married based on the recitals in the documents and the consistent actions of the Lewis heirs. The decision affirmed that ancient documents, particularly those affecting property interests, could provide critical and trustworthy evidence when no living witnesses or recent evidence were available. **Langbord v. United States Department of Treasury (832 F.3d 170, 3d Cir. 2016)** This case involved a dispute over the ownership of ten gold coins, with the Langbord family claiming ownership and the government asserting the coins were property of the United States. During trial, the District Court admitted 1930s and 1940s Secret Service reports as evidence under the \"ancient documents\" hearsay exception (Fed. R. Evid. 803(16)). The Langbord family argued that these documents contained \"hearsay within hearsay,\" which should require each level of hearsay to meet its own exception under Rule 805. The court acknowledged disagreement over whether Rule 805 applies to ancient documents but, after reviewing precedent, agreed with the Langbords. The court cited *United States v. Stelmokas*, which argued that ancient documents' general trustworthiness doesn't extend to embedded hearsay, as authors may have misunderstood or inaccurately recorded secondhand information. Ultimately, the Third Circuit held that admitting the embedded hearsay without applying Rule 805 was an abuse of discretion, though it did not invalidate the first-level hearsay allowed under Rule 803(16). **United States v. Woods (321 F.3d 361, 3d Cir. 2003)** In *Woods*, the government needed to prove that a stolen minivan had traveled in interstate commerce to satisfy the carjacking statute requirements. The FBI\'s Special Agent Heine testified based on the VIN's origin, identified through the National Insurance Crime Bureau (NICB) database, tracing the vehicle to a manufacturing plant in Tarrytown, New York. Woods objected, claiming this was hearsay. However, the Third Circuit ruled the NICB database fell under Rule 803(17), which admits \"market reports, tabulations, lists, directories, or other published compilations\" if they are generally relied upon. The court deemed the NICB database necessary (as it was the only practical source to identify the manufacturing location) and reliable (relied upon by the industry and law enforcement). Citing similar cases, the court affirmed that evidence from trusted commercial publications like the NICB database, which professionals commonly use, fits the Rule 803(17) exception. In Problem 7-32, Janet attempts to introduce price guides published by The Charlton Press to establish the value of her damaged Royal Doulton figurines. These guides list specific values for each figurine model, and Janet uses them to claim that her figurines have values of \$3,500, \$4,000, and \$3,500. Don and UPS object, arguing that the price guides are hearsay. **Analysis** 1. **Janet\'s Argument**: Janet can respond by arguing that the price guides qualify for the hearsay exception under **Rule 803(17)** of the Federal Rules of Evidence. Rule 803(17) permits the admission of \"market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.\" Janet could argue that the Charlton Press price guides meet this standard as they are a recognized source for valuing Royal Doulton collectibles, widely used and relied upon by collectors and professionals in that industry. 2. **Don and UPS's Argument**: Don and UPS might counter by challenging the reliability or general acceptance of the Charlton Press guides in the industry. They could argue that the guides are not sufficiently authoritative or widely accepted to meet the reliability requirement of Rule 803(17) or that the values provided are merely estimates rather than reliable market data. 3. **Court's Likely Ruling**: The court will likely assess whether the Charlton Press price guides are widely accepted and relied upon by the public or by those in the field of collectibles. If it finds the guides are regularly used in the collectibles market and relied upon for pricing, the court would likely admit them under Rule 803(17), concluding that they fit the rule\'s requirements for market reports or published compilations. If the court is not convinced of the guides' reliability or general use, it may exclude them as hearsay. In ***United States v. Woods*,** the Third Circuit Court reviewed Nafis Woods\'s appeal against his conviction in a federal carjacking case, where proving that the stolen vehicle crossed state lines was essential. The government's primary evidence for interstate commerce was FBI Agent Jay Heine\'s testimony. Heine used the National Insurance Crime Bureau (NICB) database to trace the minivan\'s Vehicle Identification Number (VIN) to a manufacturing plant in Tarrytown, New York, implying interstate movement. Woods argued that this evidence was inadmissible hearsay. The court, however, upheld the conviction by ruling that Heine's testimony was admissible under Rule 803(17) of the Federal Rules of Evidence. This rule permits reliance on market reports, tabulations, or directories commonly used in particular occupations, grounded in both necessity (accessibility) and reliability (industry acceptance). Other cases, such as *Goudy* in the Seventh Circuit, supported this view by allowing similar evidence to establish interstate commerce. Concluding that the NICB database met these standards, the court affirmed that Rule 803(17) appropriately covered the evidence presented, validating Woods's conviction. **Costantino v. David M. Herzog** In **Costantino v. David M. Herzog, M.D., P.C.**, the Second Circuit addressed whether a video and medical journal articles used as evidence in a medical malpractice trial could be admitted under the "learned treatise" exception to hearsay rules. The case involved **Dr. Herzog**, who delivered **Amanda Costantino** during a complicated birth where her shoulder was trapped behind her mother's pubic bone---a condition known as **shoulder dystocia**. To manage the condition, Dr. Herzog used several recognized maneuvers but, despite these efforts, Amanda was born with **Erb's Palsy**, a nerve injury affecting her arm. The Costantinos sued Dr. Herzog, alleging he deviated from accepted medical standards, causing Amanda's injury. In defense, Dr. Herzog's team introduced a **15-minute educational video** produced by the **American College of Obstetricians and Gynecologists (ACOG)**. This video demonstrated techniques for handling shoulder dystocia. The plaintiffs argued that the video was **inadmissible hearsay** and could not be included under Rule 803(18), which covers **printed learned treatises** like books, periodicals, or pamphlets. **Judge Gleeson** reviewed the video privately and ruled it admissible, reasoning that the **format**---video versus print---did not affect its reliability or educational purpose. He found it authoritative based on ACOG's standing and its recognized use in training obstetricians. Additionally, Dr. Herzog's defense introduced two **journal articles** from the **American Journal of Obstetrics and Gynecology**. One article, titled *Shoulder Dystocia, an Analysis of Risks and Obstetrical Maneuvers*, was written by **Dr. James Nocon**. Dr. Herzog was not previously familiar with Dr. Nocon or his article, but he testified that the **journal itself** was highly regarded in the obstetrics field. Plaintiffs' expert, **Dr. Nathanson**, admitted that while he considered no single publication "authoritative," he respected **ACOG's publications** and often relied on ACOG's standards himself. Dr. Nathanson's testimony supported the defense's assertion of the journal's credibility due to its **peer-review process**. The **Second Circuit upheld Judge Gleeson's decisions** on both the video and journal articles. It confirmed that the ACOG video was **authoritative** and relevant, despite its video format, and found the articles reliable due to their rigorous peer review. The court emphasized that **evidence rules must adapt** to ensure that jurors have access to reputable sources, whether in print or visual form. Concluding that both the video and articles met the standards of **trustworthy, authoritative resources**, the court found them admissible to inform the jury on **obstetric standards**. The jury ultimately ruled in favor of Dr. Herzog, and the appellate court affirmed this judgment, finding no error in admitting these materials into evidence. **Notes and Questions** 1. **Rule 803(15) and Property Documents**: Although Rule 803(15) typically applies to real property deeds, it can extend to documents impacting personal property interests. For example, in *United States v. Weinstock*, the rule applied to such documents. Additionally, some judgments establishing property interests fall within Rule 803(15), as seen in *United States v. Boulware*, where a judgment\'s factual recitals were considered exempt from hearsay under this rule. 2. **Ancient Documents Exception**: Historically, the ancient documents exception applied to documents at least 20 years old, but the 2017 amendment limits it to documents created before January 1, 1998. However, many states maintain the 20- or 30-year threshold without this cutoff. 3. **Reliability in Learned Treatises (Rule 803(18))**: Rule 803(18)(B) outlines three methods to establish a treatise\'s reliability: an expert's admission of its authority, testimony from another expert, or judicial notice. This approach prevents experts from blocking evidence by denying a treatise's authority on cross-examination. 4. **Necessity and Trustworthiness**: Rule 803(18) is justified because the necessity of these sources (experts are often unavailable) and their trustworthiness (authors risk their reputation) make them reliable evidence, as noted in *Wigmore on Evidence*. 5. **Risk Mitigation with Treatises**: Rule 803(18) limits treatises to situations where an expert is present to clarify the treatise's content, preventing misunderstandings by jurors. This policy differs from Colorado and Michigan\'s approaches to treatises, inviting comparison on effective balancing of benefits and risks. 6. **Unrestricted and Restricted Hearsay Exceptions**: Rule 803 exceptions are "unrestricted" and admit statements if they meet reliability standards, even if the declarant is available. By contrast, Rule 804 exceptions, like former testimony, apply only if the declarant is **unavailable**. Rule 804(a) defines unavailability as situations such as privilege, refusal despite court order, memory loss, physical or mental inability, or absence despite reasonable efforts. If a party causes the declarant's unavailability to prevent testimony, they cannot invoke this rule. Each exception provides a framework to admit reliable hearsay while prioritizing live testimony where possible, reflecting the Advisory Committee's balance between evidentiary needs and safeguards against unreliable statements. In **United States v. Williams**, the Second Circuit examined Judge Griesa's ruling on the **unavailability of witnesses** in a drug conspiracy case. The defendants were convicted of narcotics conspiracy after a lengthy trial. Four co-conspirators, who had previously pleaded guilty and were serving sentences, were frequently referenced in connection to the drug activities. However, when the prosecutor contacted the attorneys for these individuals to determine their willingness to testify, each attorney confirmed their clients would invoke the **Fifth Amendment** if called to the stand. The prosecution sought to use the **guilty plea allocutions** (statements made during the guilty pleas) of these co-conspirators as **statements against interest** under **Federal Rule of Evidence 804(b)(3)**, which allows such statements if the declarant is deemed unavailable. Judge Griesa accepted the attorneys\' statements about their clients\' intentions and admitted the redacted allocutions into evidence without requiring the witnesses to personally appear in court to invoke the privilege. The defendants contended that Judge Griesa should have required the co-conspirators to physically appear to claim their privilege. The Second Circuit, however, upheld Judge Griesa's decision, clarifying that **Rule 804(a)(2)** requires a witness to be present and refuse to testify under a court order, whereas **Rule 804(a)(1)** allows for a privilege ruling without the witness's physical appearance. The court reasoned that requiring the witnesses to appear would have been futile, as their intent to invoke the privilege was clear. The Second Circuit concluded that both the prosecution and Judge Griesa acted **reasonably and in good faith**, supporting the finding of unavailability based on reliable attorney representations. Unavailability **United States v. Williams**\ 927 F.2d 95 (2d Cir. 1991)\ In **United States v. Williams**, the Second Circuit reviewed a ten-week drug conspiracy trial in which Judge Griesa admitted statements from four co-conspirators who had pleaded guilty but refused to testify, asserting their **Fifth Amendment rights**. The prosecution sought to introduce the co-conspirators' guilty plea statements as **statements against interest** under **Rule 804(b)(3)** due to the declarants' unavailability. Judge Griesa ruled the co-conspirators unavailable based on representations from their attorneys without requiring them to appear in court to claim privilege. The court distinguished **Rule 804(a)(1)** (unavailability based on privilege, which does not require presence) from **Rule 804(a)(2)** (requiring court presence when refusing to testify despite a court order). The appellate court upheld Judge Griesa's decision, affirming that requiring the declarants' appearance would be futile and finding that **Judge Griesa's ruling was reasonable and supported by the record**. **United States v. Carson**\ 1987 WL 37646 (4th Cir. 1987)\ In **United States v. Carson**, Carson was convicted of assault after the victim, due to claimed **memory loss**, could not recall details of the incident at trial. The court declared the victim unavailable under **Rule 804(a)(3)** and admitted the victim's grand jury testimony. Carson argued the declaration of unavailability was insufficient without further investigation, potentially stemming from fear or lack of memory. The Fourth Circuit rejected these claims, noting that **Rule 804(a)(3)** merely requires the witness to claim lack of memory about the incident, with no need to assess the validity of this claim. The court upheld the decision, citing that **memory loss suffices for unavailability under Rule 804(a)(3)**. **United States v. McGuire**\ 307 F.3d 1192 (9th Cir. 2002)\ In **United States v. McGuire**, McGuire's retrial included **former testimony** from an ABC producer who could not attend due to a **late-stage pregnancy**. The Ninth Circuit examined whether pregnancy constituted an \"infirmity\" under **Rule 804(a)(4)**. The court ruled that the witness's pregnancy met the rule's standards, relying on the doctor's statement about potential stress and risk to the mother and unborn child. The court further noted that arranging another trial date was challenging given the complex logistics. Concluding that temporary conditions such as **pregnancy qualify under Rule 804(a)(4)**, the Ninth Circuit upheld the admission of the producer's prior testimony. **United States v. Kehm**\ 799 F.2d 354 (7th Cir. 1986)\ In **United States v. Kehm**, Greenberg, charged in a drug conspiracy, sought testimony from a Bahamian resident, **Nigel Bowe**, who refused to travel to the U.S. Despite Greenberg's claim that Bowe was "available," the court ruled Bowe unavailable under **Rule 804(a)(5)** since compelling his appearance would require extraordinary measures, such as a new treaty or formal indictment. The court stated that **futility excuses the need for compulsory measures** if efforts would likely fail. Even if extradited, Bowe's probable invocation of his privilege against self-incrimination further rendered him unavailable. **United States v. Peterson**\ 100 F.3d 7 (2d Cir. 1996)\ In **United States v. Peterson**, the defendant attempted to introduce prior **grand jury testimony** in his favor after refusing to testify at trial, invoking the **Fifth Amendment**. The court ruled Peterson's prior testimony inadmissible under **Rule 804(b)(1)** since his invocation of privilege made him unavailable by his own choice, not through the opposing party's actions. The court cited **United States v. Kimball**, which establishes that a party cannot claim unavailability by invoking their privilege and then introduce their own prior testimony. The Second Circuit affirmed that **self-created unavailability does not qualify under Rule 804**. **Notes and Questions** 1. **Court-Ordered Refusal Requirement**: **Rule 804(a)(2)** applies only when a witness refuses to testify after a court order, thus requiring the witness's presence in court under the threat of contempt, as exemplified in **United States v. Zappala**. 2. **Genuine vs. Feigned Memory Loss**: In cases like **Carson**, courts are not expected to assess whether memory loss is genuine or fabricated under **Rule 804(a)(3)**, as doing so complicates the practical application of the rule. The **House Committee** notes that even feigned memory loss can meet the requirements of Rule 804(a)(2) instead. 3. **Memory of Event vs. Statement**: For **Rule 804(a)(3)**, a declarant's memory of the event itself is what matters---not their memory of making the statement. For example, in **Lamonica v. Safe Hurricane Shutters, Inc.**, only the memory of the event to which the hearsay relates is relevant. 4. **Temporary Disability**: As **McGuire** established, temporary disabilities meet **Rule 804(a)(4)** standards, as the rule only requires a "then-existing" infirmity or illness. 5. **Attempt to Obtain Deposition**: **Rule 804(a)(5)** mandates attempting to secure a witness's deposition before invoking hearsay exceptions like **statements against interest** or **personal history**. However, depositions are unnecessary for **former testimony** and **forfeiture by wrongdoing** exceptions, given the expectation of reliability in those scenarios. 6. **Party-Caused Unavailability**: **Rule 804(a)** prohibits a party from causing a witness's unavailability to invoke hearsay exceptions. This applies to cases where a party threatens the declarant, as in **United States v. Pizarro**. However, refusal to grant immunity, as seen in **Kehm**, does not constitute wrongful procurement. 7. **Judicial Determination**: Determining if a witness is \"unavailable\" under **Rule 804(a)** falls exclusively to the judge under **Rule 104(a)**, as seen in **Williams v. United Dairy Farmers**. **Rule 804(b)(1)** allows certain past testimony to be used in court, even if the person who originally gave it can't be there now, but only if certain conditions are met. These conditions are: 1. **The Testimony Must Be from an Official Setting**: The statement has to come from a previous trial, hearing, or legal deposition (not just any old conversation). 2. **The Opponent Had a Fair Chance to Question It Before**: The person or side that's now being challenged by this testimony (or in civil cases, someone connected to them) had a chance in that previous setting to question the witness and explore their statement fully, whether by direct, cross-examination, or follow-up questioning. **Why This Rule Requires the Witness to Be Unavailable** The rule assumes that it's best for witnesses to testify in person, in front of the court, so their words, expressions, and body language can be observed directly. This in-person testimony gives it \"depth\" and makes cross-examination more meaningful. However, if the person is unavailable, and their testimony was already given under oath and with a fair opportunity for questioning, it can be used, since it still carries strong reliability. **Key Questions That Arise** When using this rule, three important questions are often considered: 1. **What Counts as an "Opportunity" to Question?** This looks at whether the other side really had a fair chance to ask questions before. 2. **What Is a "Similar Motive"?** This means the reason for questioning back then was close enough to the reason they would have for questioning it now. 3. **Who Is a "Predecessor in Interest"?** In civil cases, this asks if the person who had the chance to question before was closely connected enough to the current party for it to count. **Problem 7-33: The Absent-Minded Witness** 1. **Situation**: - **Facts**: Donald is on trial for conspiracy to commit wire fraud. The prosecution calls **Lisa** as a witness to testify about Donald's role in the scheme. On the stand, Lisa claims she can't remember the details, despite attempts by the prosecution to refresh her memory. The prosecution then seeks to introduce Lisa's **grand jury testimony**, where she previously provided details about the scheme. Donald objects, citing hearsay. - **Issue**: Can the grand jury testimony be admitted under a hearsay exception? 2. **Analysis**: - The prosecution could respond by citing **Rule 804(b)(1)**, which allows **former testimony** as an exception to hearsay if the witness is "unavailable" and if the opposing party had a **similar motive and opportunity** to question the witness during the earlier testimony. - However, **grand jury testimony typically does not qualify under the "former testimony" exception** because it does not meet the "opportunity and similar motive" requirement: Donald (the opposing party) had no opportunity to cross-examine Lisa during the grand jury proceedings. 3. **Ruling**: - **Grand Jury Testimony**: The court will likely rule **against admitting Lisa's grand jury testimony** as it fails to meet Rule 804(b)(1) requirements. Donald did not have a prior opportunity to cross-examine her at the grand jury, making it inadmissible as former testimony. - **Preliminary Hearing Testimony**: If Lisa's prior testimony had been given at a **preliminary hearing**, the outcome might differ. In that setting, Donald would likely have had the opportunity to cross-examine her, and if the court finds that he had a **similar motive** to challenge her testimony at that stage, the court may allow it under the former testimony exception. - **Lisa's Favorable Grand Jury Testimony**: If Lisa's grand jury testimony was **favorable to Donald**, Donald cannot introduce it as former testimony under Rule 804(b)(1) because he wasn't a party with an opportunity to cross-examine her at that time. However, Donald might be able to argue for its admissibility under other hearsay exceptions, depending on the circumstances. - **Donald's Own Grand Jury Testimony**: If **Donald himself testified before the grand jury** but now invokes his Fifth Amendment right against self-incrimination at trial, the prosecution may be able to introduce his **own grand jury statements** as **statements by a party-opponent** under **Rule 801(d)(2)**. Statements by a party-opponent are not considered hearsay, so they would be admissible against Donald. **Problem 7-34: The Maple Syrup** 1. **Situation**: - **Facts**: Paula sues a supermarket, claiming she slipped on maple syrup on the floor. **Wendy**, a witness, testifies at the first trial that she saw Paula on the floor and noticed maple syrup on Paula's shoes. A mistrial is declared. Before the retrial, Wendy dies, and Paula's attorney offers Wendy's **testimony transcript** from the first trial. The supermarket owner objects, citing hearsay. - **Issue**: Can Wendy's prior testimony be admitted under a hearsay exception? 2. **Analysis**: - Paula's attorney can argue that Wendy's **prior trial testimony qualifies as "former testimony"** under **Rule 804(b)(1)** because Wendy is now **unavailable due to her death**. - Additionally, since Wendy's testimony was given during the first trial, the **supermarket owner had the opportunity and similar motive to cross-examine her** about her observations related to Paula's fall. This satisfies the requirements of Rule 804(b)(1) for former testimony. 3. **Ruling**: - The court will likely rule in **favor of admitting Wendy's prior testimony**. Rule 804(b)(1) applies because: - Wendy is unavailable (she has died), - Her testimony was given at the prior trial, - The supermarket owner had the opportunity to cross-examine her with a similar motive during the first trial. Thus, Paula's attorney should argue that Wendy's prior testimony meets all conditions for the **former testimony hearsay exception**, and the court will probably allow it into evidence. In **United States v. DiNapoli**, the Second Circuit examined the \"similar motive\" requirement under **Rule 804(b)(1)**, which allows the admission of former testimony if the party opposing the evidence had a similar motive to challenge it in the prior proceeding as they would in the current trial. The case revolved around a **RICO prosecution** for a bid-rigging conspiracy in Manhattan's concrete construction industry, allegedly controlled by organized crime groups. During a subsequent trial, the defendants attempted to introduce **grand jury testimony** from two witnesses, **Frederick DeMatteis** and **Pasquale Bruno**, who had denied knowledge of the scheme when questioned before the grand jury. The prosecution opposed this testimony as it was favorable to the defendants, and the district court excluded it, finding that the prosecutor's motive in the grand jury proceeding was not similar to their motive at trial. **Key Issues and Ruling** The core issue was whether the prosecutor had a **\"similar motive\"** to disprove the witnesses\' statements in the grand jury as they would have in a trial setting. The majority opinion held that **similar motive must account for the context and purpose** of each proceeding, focusing on whether the prosecutor had a substantially similar intensity of interest in proving or disproving the same issue. 1. **Grand Jury Context vs. Trial Context**: The court highlighted that the purpose of a **grand jury investigation** is fundamentally different from a trial. In a grand jury, the prosecutor\'s goal is typically to establish **probable cause** rather than prove guilt beyond a reasonable doubt. Thus, the prosecutor may not fully challenge testimony in the grand jury, even if they suspect it is false, because the burden of proof is lower, and additional scrutiny is not always necessary to secure an indictment. 2. **Specific Findings on Similar Motive**: The court concluded that in this case, the prosecutor's motive at the grand jury was **markedly different** from the motive at trial: - **Defendants Already Indicted**: Since the defendants had already been indicted by the time the testimony was given, the grand jury was no longer evaluating probable cause against the main suspects. Thus, the prosecutor had little incentive to challenge the testimony with full intensity. - **Public Interest in Non-Disclosure**: During the grand jury, the prosecutor refrained from revealing sensitive evidence (such as undisclosed wiretaps and cooperating witness statements) to avoid compromising ongoing investigations. This choice underscored that the prosecutor's intent was more focused on gathering information than disproving the witnesses' statements. Given these considerations, the court ruled that **the \"similar motive\" requirement was not met** because the prosecutor's interest and approach during the grand jury did not align closely enough with the prosecutorial goals and methods employed at trial. **Dissenting Opinion** **Judge Pratt**, joined by Judges Miner and Altimari, dissented, arguing that the majority's interpretation effectively turned the \"similar motive\" requirement into a \"same motive\" standard. They believed that requiring courts to evaluate the **\"intensity of interest\"** adds complexity and imposes a stricter test than intended by Rule 804(b)(1). The dissent criticized the majority's reliance on the prosecutor\'s unchallenged, retrospective claims about their motives, suggesting that such a determination should be based on the district court\'s factual findings, not assumed by the appellate court. **Implications** This ruling established that **similar motive requires more than merely aligning the opposing party\'s position on an issue** across two proceedings; it also considers the **context, purpose, and the stakes of each proceeding**. The decision highlights that **grand jury proceedings often lack the intensity and openness of a trial setting**, meaning that prior grand jury testimony may frequently fail the \"similar motive\" test under Rule 804(b)(1) when offered in later criminal trials. Similar Motive Test: The court established that the test for similar motive under Rule 804(b)(1) must consider not only whether the questioner is on the same side of the same issue at both proceedings, but also whether the questioner had a substantially similar interest in asserting that side of the issue In **Lloyd v. American Export Lines, Inc.**, the court had to decide whether testimony from a previous **Coast Guard hearing** could be used in a **civil lawsuit** brought by Alvarez, a crew member who claimed he was injured due to negligence by American Export Lines (Export). The case involved a **fight between Alvarez and another crew member, Lloyd**, on a ship, and the Coast Guard had already investigated the incident to determine if Lloyd's maritime credentials should be revoked due to misconduct. **Background** Alvarez argued that Export was negligent in allowing Lloyd to work on the ship, knowing Lloyd had violent tendencies. However, Lloyd, who was the only other person involved in the fight, wasn't available to testify in this civil case because he wasn't in court. Export wanted to use Lloyd's previous **testimony from the Coast Guard hearing** to show his side of the story, but Alvarez objected, saying this testimony was hearsay since Alvarez hadn't been able to cross-examine Lloyd in the Coast Guard hearing. **Key Issue: \"Predecessor in Interest\"** Under **Rule 804(b)(1)**, former testimony can sometimes be admitted as evidence if: 1. The witness is **unavailable**. 2. The current party (here, Alvarez) or a **"predecessor in interest"** had a similar opportunity and reason to question the witness in the earlier setting. The question was whether the **Coast Guard** in its investigation was considered a "predecessor in interest" to Alvarez, meaning it had a similar enough motive and opportunity to cross-examine Lloyd in the same way Alvarez would have wanted to in this civil case. **Court\'s Decision** The court decided that the Coast Guard *did* act as a \"predecessor in interest\" to Alvarez. Here's why: - **Similar Motive**: Both the Coast Guard and Alvarez had a common interest in exploring Lloyd's behavior during the fight. The Coast Guard was investigating Lloyd's misconduct, just as Alvarez was trying to show that Export was responsible for allowing a potentially violent person to work on the ship. - **Community of Interest**: The court found that, while the Coast Guard was representing public interests (safety in the merchant marine service) and Alvarez was pursuing a private interest (damages for his injury), both were ultimately focused on the same central facts about Lloyd\'s conduct. The court allowed the previous testimony because it concluded that the Coast Guard's questioning of Lloyd in its hearing was close enough to what Alvarez's legal team would have done in cross-examining him in this civil trial. **Dissenting Opinion** One judge disagreed, arguing that simply having a "similar motive" wasn't enough. They believed that a \"predecessor in interest\" should be someone more directly linked to Alvarez's interests and objectives. The Coast Guard's role was to ensure safety and uphold regulations, not to fully represent Alvarez's interests in getting compensation for injuries. This judge worried that allowing this testimony would set a precedent for admitting evidence from unrelated hearings, which could be unfair to parties like Alvarez, who didn't have direct control over those earlier proceedings. **Key Takeaway** The court's ruling highlights a **broad interpretation** of what counts as a "predecessor in interest," allowing previous testimony if there's a **shared focus on similar facts**, even if the parties aren't exactly aligned in their goals. However, the dissent raised concerns that this broad approach might be too lenient, potentially allowing unrelated prior testimonies to be used in ways that could disadvantage future litigants. In *United States v. Woods*, the Third Circuit Court reviewed Nafis Woods\'s appeal against his conviction in a federal carjacking case, where proving that the stolen vehicle crossed state lines was essential. The government's primary evidence for interstate commerce was FBI Agent Jay Heine\'s testimony. Heine used the National Insurance Crime Bureau (NICB) database to trace the minivan\'s Vehicle Identification Number (VIN) to a manufacturing plant in Tarrytown, New York, implying interstate movement. Woods argued that this evidence was inadmissible hearsay. The court, however, upheld the conviction by ruling that Heine's testimony was admissible under Rule 803(17) of the Federal Rules of Evidence. This rule permits reliance on market reports, tabulations, or directories commonly used in particular occupations, grounded in both necessity (accessibility) and reliability (industry acceptance). Other cases, such as *Goudy* in the Seventh Circuit, supported this view by allowing similar evidence to establish interstate commerce. Concluding that the NICB database met these standards, the court affirmed that Rule 803(17) appropriately covered the evidence presented, validating Woods's conviction. In **Costantino v. David M. Herzog, M.D., P.C.**, the Second Circuit addressed whether a video and medical journal articles used as evidence in a medical malpractice trial could be admitted under the "learned treatise" exception to hearsay rules. The case involved **Dr. Herzog**, who delivered **Amanda Costantino** during a complicated birth where her shoulder was trapped behind her mother's pubic bone---a condition known as **shoulder dystocia**. To manage the condition, Dr. Herzog used several recognized maneuvers but, despite these efforts, Amanda was born with **Erb's Palsy**, a nerve injury affecting her arm. The Costantinos sued Dr. Herzog, alleging he deviated from accepted medical standards, causing Amanda's injury. In defense, Dr. Herzog's team introduced a **15-minute educational video** produced by the **American College of Obstetricians and Gynecologists (ACOG)**. This video demonstrated techniques for handling shoulder dystocia. The plaintiffs argued that the video was **inadmissible hearsay** and could not be included under Rule 803(18), which covers **printed learned treatises** like books, periodicals, or pamphlets. **Judge Gleeson** reviewed the video privately and ruled it admissible, reasoning that the **format**---video versus print---did not affect its reliability or educational purpose. He found it authoritative based on ACOG's standing and its recognized use in training obstetricians. Additionally, Dr. Herzog's defense introduced two **journal articles** from the **American Journal of Obstetrics and Gynecology**. One article, titled *Shoulder Dystocia, an Analysis of Risks and Obstetrical Maneuvers*, was written by **Dr. James Nocon**. Dr. Herzog was not previously familiar with Dr. Nocon or his article, but he testified that the **journal itself** was highly regarded in the obstetrics field. Plaintiffs' expert, **Dr. Nathanson**, admitted that while he considered no single publication "authoritative," he respected **ACOG's publications** and often relied on ACOG's standards himself. Dr. Nathanson's testimony supported the defense's assertion of the journal's credibility due to its **peer-review process**. The **Second Circuit upheld Judge Gleeson's decisions** on both the video and journal articles. It confirmed that the ACOG video was **authoritative** and relevant, despite its video format, and found the articles reliable due to their rigorous peer review. The court emphasized that **evidence rules must adapt** to ensure that jurors have access to reputable sources, whether in print or visual form. Concluding that both the video and articles met the standards of **trustworthy, authoritative resources**, the court found them admissible to inform the jury on **obstetric standards**. The jury ultimately ruled in favor of Dr. Herzog, and the appellate court affirmed this judgment, finding no error in admitting these materials into evidence. This section reviews notable aspects of the hearsay rule and its exceptions under Rules 803 and 804. 1. **Rule 803(15) and Property Documents**: Although Rule 803(15) typically applies to real property deeds, it can extend to documents impacting personal property interests. For example, in *United States v. Weinstock*, the rule applied to such documents. Additionally, some judgments establishing property interests fall within Rule 803(15), as seen in *United States v. Boulware*, where a judgment\'s factual recitals were considered exempt from hearsay under this rule. 2. **Ancient Documents Exception**: Historically, the ancient documents exception applied to documents at least 20 years old, but the 2017 amendment limits it to documents created before January 1, 1998. However, many states maintain the 20- or 30-year threshold without this cutoff. 3. **Reliability in Learned Treatises (Rule 803(18))**: Rule 803(18)(B) outlines three methods to establish a treatise\'s reliability: an expert's admission of its authority, testimony from another expert, or judicial notice. This approach prevents experts from blocking evidence by denying a treatise's authority on cross-examination. 4. **Necessity and Trustworthiness**: Rule 803(18) is justified because the necessity of these sources (experts are often unavailable) and their trustworthiness (authors risk their reputation) make them reliable evidence, as noted in *Wigmore on Evidence*. 5. **Risk Mitigation with Treatises**: Rule 803(18) limits treatises to situations where an expert is present to clarify the treatise's content, preventing misunderstandings by jurors. This policy differs from Colorado and Michigan\'s approaches to treatises, inviting comparison on effective balancing of benefits and risks. 6. **Unrestricted and Restricted Hearsay Exceptions**: Rule 803 exceptions are "unrestricted" and admit statements if they meet reliability standards, even if the declarant is available. By contrast, Rule 804 exceptions, like former testimony, apply only if the declarant is **unavailable**. Rule 804(a) defines unavailability as situations such as privilege, refusal despite court order, memory loss, physical or mental inability, or absence despite reasonable efforts. If a party causes the declarant's unavailability to prevent testimony, they cannot invoke this rule. Each exception provides a framework to admit reliable hearsay while prioritizing live testimony where possible, reflecting the Advisory Committee's balance between evidentiary needs and safeguards against unreliable statements. In **United States v. Williams**, the Second Circuit examined Judge Griesa's ruling on the **unavailability of witnesses** in a drug conspiracy case. The defendants were convicted of narcotics conspiracy after a lengthy trial. Four co-conspirators, who had previously pleaded guilty and were serving sentences, were frequently referenced in connection to the drug activities. However, when the prosecutor contacted the attorneys for these individuals to determine their willingness to testify, each attorney confirmed their clients would invoke the **Fifth Amendment** if called to the stand. The prosecution sought to use the **guilty plea allocutions** (statements made during the guilty pleas) of these co-conspirators as **statements against interest** under **Federal Rule of Evidence 804(b)(3)**, which allows such statements if the declarant is deemed unavailable. Judge Griesa accepted the attorneys\' statements about their clients\' intentions and admitted the redacted allocutions into evidence without requiring the witnesses to personally appear in court to invoke the privilege. The defendants contended that Judge Griesa should have required the co-conspirators to physically appear to claim their privilege. The Second Circuit, however, upheld Judge Griesa's decision, clarifying that **Rule 804(a)(2)** requires a witness to be present and refuse to testify under a court order, whereas **Rule 804(a)(1)** allows for a privilege ruling without the witness's physical appearance. The court reasoned that requiring the witnesses to appear would have been futile, as their intent to invoke the privilege was clear. The Second Circuit concluded that both the prosecution and Judge Griesa acted **reasonably and in good faith**, supporting the finding of unavailability based on reliable attorney representations. In **United States v. Williams**, the Second Circuit reviewed a ten-week drug conspiracy trial in which Judge Griesa admitted statements from four co-conspirators who had pleaded guilty but refused to testify, asserting their **Fifth Amendment rights**. The prosecution sought to introduce the co-conspirators' guilty plea statements as **statements against interest** under **Rule 804(b)(3)** due to the declarants' unavailability. Judge Griesa ruled the co-conspirators unavailable based on representations from their attorneys without requiring them to appear in court to claim privilege. The court distinguished **Rule 804(a)(1)** (unavailability based on privilege, which does not require presence) from **Rule 804(a)(2)** (requiring court presence when refusing to testify despite a court order). The appellate court upheld Judge Griesa's decision, affirming that requiring the declarants' appearance would be futile and finding that **Judge Griesa's ruling was reasonable and supported by the record**. **United States v. Carson**\ 1987 WL 37646 (4th Cir. 1987)\ In **United States v. Carson**, Carson was convicted of assault after the victim, due to claimed **memory loss**, could not recall details of the incident at trial. The court declared the victim unavailable under **Rule 804(a)(3)** and admitted the victim's grand jury testimony. Carson argued the declaration of unavailability was insufficient without further investigation, potentially stemming from fear or lack of memory. The Fourth Circuit rejected these claims, noting that **Rule 804(a)(3)** merely requires the witness to claim lack of memory about the incident, with no need to assess the validity of this claim. The court upheld the decision, citing that **memory loss suffices for unavailability under Rule 804(a)(3)**. **United States v. McGuire**\ 307 F.3d 1192 (9th Cir. 2002)\ In **United States v. McGuire**, McGuire's retrial included **former testimony** from an ABC producer who could not attend due to a **late-stage pregnancy**. The Ninth Circuit examined whether pregnancy constituted an \"infirmity\" under **Rule 804(a)(4)**. The court ruled that the witness's pregnancy met the rule's standards, relying on the doctor's statement about potential stress and risk to the mother and unborn child. The court further noted that arranging another trial date was challenging given the complex logistics. Concluding that temporary conditions such as **pregnancy qualify under Rule 804(a)(4)**, the Ninth Circuit upheld the admission of the producer's prior testimony. **United States v. Kehm**\ 799 F.2d 354 (7th Cir. 1986)\ In **United States v. Kehm**, Greenberg, charged in a drug conspiracy, sought testimony from a Bahamian resident, **Nigel Bowe**, who refused to travel to the U.S. Despite Greenberg's claim that Bowe was "available," the court ruled Bowe unavailable under **Rule 804(a)(5)** since compelling his appearance would require extraordinary measures, such as a new treaty or formal indictment. The court stated that **futility excuses the need for compulsory measures** if efforts would likely fail. Even if extradited, Bowe's probable invocation of his privilege against self-incrimination further rendered him unavailable. **United States v. Peterson**\ 100 F.3d 7 (2d Cir. 1996)\ In **United States v. Peterson**, the defendant attempted to introduce prior **grand jury testimony** in his favor after refusing to testify at trial, invoking the **Fifth Amendment**. The court ruled Peterson's prior testimony inadmissible under **Rule 804(b)(1)** since his invocation of privilege made him unavailable by his own choice, not through the opposing party's actions. The court cited **United States v. Kimball**, which establishes that a party cannot claim unavailability by invoking their privilege and then introduce their own prior testimony. The Second Circuit affirmed that **self-created unavailability does not qualify under Rule 804**. **Notes and Questions** 1. **Court-Ordered Refusal Requirement**: **Rule 804(a)(2)** applies only when a witness refuses to testify after a court order, thus requiring the witness's presence in court under the threat of contempt, as exemplified in **United States v. Zappala**. 2. **Genuine vs. Feigned Memory Loss**: In cases like **Carson**, courts are not expected to assess whether memory loss is genuine or fabricated under **Rule 804(a)(3)**, as doing so complicates the practical application of the rule. The **House Committee** notes that even feigned memory loss can meet the requirements of Rule 804(a)(2) instead. 3. **Memory of Event vs. Statement**: For **Rule 804(a)(3)**, a declarant's memory of the event itself is what matters---not their memory of making the statement. For example, in **Lamonica v. Safe Hurricane Shutters, Inc.**, only the memory of the event to which the hearsay relates is relevant. 4. **Temporary Disability**: As **McGuire** established, temporary disabilities meet **Rule 804(a)(4)** standards, as the rule only requires a "then-existing" infirmity or illness. 5. **Attempt to Obtain Deposition**: **Rule 804(a)(5)** mandates attempting to secure a witness's deposition before invoking hearsay exceptions like **statements against interest** or **personal history**. However, depositions are unnecessary for **former testimony** and **forfeiture by wrongdoing** exceptions, given the expectation of reliability in those scenarios. 6. **Party-Caused Unavailability**: **Rule 804(a)** prohibits a party from causing a witness's unavailability to invoke hearsay exceptions. This applies to cases where a party threatens the declarant, as in **United States v. Pizarro**. However, refusal to grant immunity, as seen in **Kehm**, does not constitute wrongful procurement. 7. **Judicial Determination**: Determining if a witness is \"unavailable\" under **Rule 804(a)** falls exclusively to the judge under **Rule 104(a)**, as seen in **Williams v. United Dairy Farmers**. **Rule 804(b)(1)** allows certain past testimony to be used in court, even if the person who originally gave it can't be there now, but only if certain conditions are met. These conditions are: 1. **The Testimony Must Be from an Official Setting**: The statement has to come from a previous trial, hearing, or legal deposition (not just any old conversation). 2. **The Opponent Had a Fair Chance to Question It Before**: The person or side that's now being challenged by this testimony (or in civil cases, someone connected to them) had a chance in that previous setting to question the witness and explore their statement fully, whether by direct, cross-examination, or follow-up questioning. **Why This Rule Requires the Witness to Be Unavailable** The rule assumes that it's best for witnesses to testify in person, in front of the court, so their words, expressions, and body language can be observed directly. This in-person testimony gives it \"depth\" and makes cross-examination more meaningful. However, if the person is unavailable, and their testimony was already given under oath and with a fair opportunity for questioning, it can be used, since it still carries strong reliability. **Key Questions That Arise** When using this rule, three important questions are often considered: 1. **What Counts as an "Opportunity" to Question?** This looks at whether the other side really had a fair chance to ask questions before. 2. **What Is a "Similar Motive"?** This means the reason for questioning back then was close enough to the reason they would have for questioning it now. 3. **Who Is a "Predecessor in Interest"?** In civil cases, this asks if the person who had the chance to question before was closely connected enough to the current party for it to count. The material following this note delves into these three questions, helping courts decide if past testimony is fair to use in this new context. **Problem 7-33: The Absent-Minded Witness** 1. **Situation**: - **Facts**: Donald is on trial for conspiracy to commit wire fraud. The prosecution calls **Lisa** as a witness to testify about Donald's role in the scheme. On the stand, Lisa claims she can't remember the details, despite attempts by the prosecution to refresh her memory. The prosecution then seeks to introduce Lisa's **grand jury testimony**, where she previously provided details about the scheme. Donald objects, citing hearsay. - **Issue**: Can the grand jury testimony be admitted under a hearsay exception? 2. **Analysis**: - The prosecution could respond by citing **Rule 804(b)(1)**, which allows **former testimony** as an exception to hearsay if the witness is "unavailable" and if the opposing party had a **similar motive and opportunity** to question the witness during the earlier testimony. - However, **grand jury testimony typically does not qualify under the "former testimony" exception** because it does not meet the "opportunity and similar motive" requirement: Donald (the opposing party) had no opportunity to cross-examine Lisa during the grand jury proceedings. 3. **Ruling**: - **Grand Jury Testimony**: The court will likely rule **against admitting Lisa's grand jury testimony** as it fails to meet Rule 804(b)(1) requirements. Donald did not have a prior opportunity to cross-examine her at the grand jury, making it inadmissible as former testimony. - **Preliminary Hearing Testimony**: If Lisa's prior testimony had been given at a **preliminary hearing**, the outcome might differ. In that setting, Donald would likely have had the opportunity to cross-examine her, and if the court finds that he had a **similar motive** to challenge her testimony at that stage, the court may allow it under the former testimony exception. - **Lisa's Favorable Grand Jury Testimony**: If Lisa's grand jury testimony was **favorable to Donald**, Donald cannot introduce it as former testimony under Rule 804(b)(1) because he wasn't a party with an opportunity to cross-examine her at that time. However, Donald might be able to argue for its admissibility under other hearsay exceptions, depending on the circumstances. - **Donald's Own Grand Jury Testimony**: If **Donald himself testified before the grand jury** but now invokes his Fifth Amendment right against self-incrimination at trial, the prosecution may be able to introduce his **own grand jury statements** as **statements by a party-opponent** under **Rule 801(d)(2)**. Statements by a party-opponent are not considered hearsay, so they would be admissible against Donald. **Problem 7-34: The Maple Syrup** 1. **Situation**: - **Facts**: Paula sues a supermarket, claiming she slipped on maple syrup on the floor. **Wendy**, a witness, testifies at the first trial that she saw Paula on the floor and noticed maple syrup on Paula's shoes. A mistrial is declared. Before the retrial, Wendy dies, and Paula's attorney offers Wendy's **testimony transcript** from the first trial. The supermarket owner objects, citing hearsay. - **Issue**: Can Wendy's prior testimony be admitted under a hearsay exception? 2. **Analysis**: - Paula's attorney can argue that Wendy's **prior trial testimony qualifies as "former testimony"** under **Rule 804(b)(1)** because Wendy is now **unavailable due to her death**. - Additionally, since Wendy's testimony was given during the first trial, the **supermarket owner had the opportunity and similar motive to cross-examine her** about her observations related to Paula's fall. This satisfies the requirements of Rule 804(b)(1) for former testimony. 3. **Ruling**: - The court will likely rule in **favor of admitting Wendy's prior testimony**. Rule 804(b)(1) applies because: - Wendy is unavailable (she has died), - Her testimony was given at the prior trial, - The supermarket owner had the opportunity to cross-examine her with a similar motive during the first trial. Thus, Paula's attorney should argue that Wendy's prior testimony meets all conditions for the **former testimony hearsay exception**, and the court will probably allow it into evidence. In **United States v. DiNapoli**, the Second Circuit examined the \"similar motive\" requirement under **Rule 804(b)(1)**, which allows the admission of former testimony if the party opposing the evidence had a similar motive to challenge it in the prior proceeding as they would in the current trial. The case revolved around a **RICO prosecution** for a bid-rigging conspiracy in Manhattan's concrete construction industry, allegedly controlled by organized crime groups. During a subsequent trial, the defendants attempted to introduce **grand jury testimony** from two witnesses, **Frederick DeMatteis** and **Pasquale Bruno**, who had denied knowledge of the scheme when questioned before the grand jury. The prosecution opposed this testimony as it was favorable to the defendants, and the district court excluded it, finding that the prosecutor's motive in the grand jury proceeding was not similar to their motive at trial. **Key Issues and Ruling** The core issue was whether the prosecutor had a **\"similar motive\"** to disprove the witnesses\' statements in the grand jury as they would have in a trial setting. The majority opinion held that **similar motive must account for the context and purpose** of each proceeding, focusing on whether the prosecutor had a substantially similar intensity of interest in proving or disproving the same issue. 1. **Grand Jury Context vs. Trial Context**: The court highlighted that the purpose of a **grand jury investigation** is fundamentally different from a trial. In a grand jury, the prosecutor\'s goal is typically to establish **probable cause** rather than prove guilt beyond a reasonable doubt. Thus, the prosecutor may not fully challenge testimony in the grand jury, even if they suspect it is false, because the burden of proof is lower, and additional scrutiny is not always necessary to secure an indictment. 2. **Specific Findings on Similar Motive**: The court concluded that in this case, the prosecutor's motive at the grand jury was **markedly different** from the motive at trial: - **Defendants Already Indicted**: Since the defendants had already been indicted by the time the testimony was given, the grand jury was no longer evaluating probable cause against the main suspects. Thus, the prosecutor had little incentive to challenge the testimony with full intensity. - **Public Interest in Non-Disclosure**: During the grand jury, the prosecutor refrained from revealing sensitive evidence (such as undisclosed wiretaps and cooperating witness statements) to avoid compromising ongoing investigations. This choice underscored that the prosecutor's intent was more focused on gathering information than disproving the witnesses' statements. Given these considerations, the court ruled that **the \"similar motive\" requirement was not met** because the prosecutor's interest and approach during the grand jury did not align closely enough with the prosecutorial goals and methods employed at trial. **Dissenting Opinion** **Judge Pratt**, joined by Judges Miner and Altimari, dissented, arguing that the majority's interpretation effectively turned the \"similar motive\" requirement into a \"same motive\" standard. They believed that requiring courts to evaluate the **\"intensity of interest\"** adds complexity and imposes a stricter test than intended by Rule 804(b)(1). The dissent criticized the majority's reliance on the prosecutor\'s unchallenged, retrospective claims about their motives, suggesting that such a determination should be based on the district court\'s factual findings, not assumed by the appellate court. **Implications** This ruling established that **similar motive requires more than merely aligning the opposing party\'s position on an issue** across two proceedings; it also considers the **context, purpose, and the stakes of each proceeding**. The decision highlights that **grand jury proceedings often lack the intensity and openness of a trial setting**, meaning that prior grand jury testimony may frequently fail the \"similar motive\" test under Rule 804(b)(1) when offered in later criminal trials. In **United States v. DiNapoli**, the court was deciding whether statements made in a **grand jury investigation** could be used later in a **trial**. For this to happen under the rule (Rule 804(b)(1)), the people challenging the statements (the prosecutors, in this case) must have had a **\"similar motive\"** to question or challenge those statements during the grand jury as they would in a trial. **What is the \"Similar Motive\" Test?** To explain this simply: 1. **Grand Jury vs. Trial Purpose**: - A **grand jury** is like an early investigation stage. The goal is to figure out if there's enough evidence (probable cause) to charge someone with a crime. Here, the prosecutors don't necessarily need to challenge every statement fully because they only need to show that there's a reason to believe the person committed a crime. - A **trial** is different. Here, the goal is to **prove guilt beyond a reasonable doubt**. Prosecutors have a much stronger reason to challenge any statements that could weaken their case, as they are now focused on convincing the judge or jury. 2. **Applying the Test in DiNapoli**: - The court said that the **motive of the prosecutors in the grand jury was different from their motive at trial**. In the grand jury, the prosecutors didn't need to press too hard on every statement because they had already decided to charge the defendants, and the grand jury was focused on gathering more information. - At trial, however, the stakes are higher, and the prosecutors have a bigger motivation to challenge statements that don't support their case. 3. **Decision**: - Because the **motive wasn't "similar enough"** in both settings, the court ruled that the grand jury statements couldn't be used at trial. **How This Works in a Grand Jury vs. a Trial** 1. **In a Grand Jury**: - The prosecutor's goal is to see if there's **enough reason** to charge someone with a crime, but they don't need to go into full attack mode on every statement that might seem untrue or incomplete. - The prosecutor might ask a few questions, but they don't have a huge incentive to question everything aggressively because the standard is **probable cause**---a much lower standard than what's needed in a trial. - If someone says something that seems off, the prosecutor might let it slide rather than spending a lot of time digging into it. 2. **In a Trial**: - The stakes are higher because the prosecutor now needs to prove the defendant is guilty **beyond a reasonable doubt**---a much stricter standard. - If a witness says something that could weaken the case or support the defense, the prosecutor will have a strong reason to **challenge it thoroughly**. They might cross-examine the witness to expose any weak points, look for contradictions, or introduce other evidence to discredit the statement. - At trial, every detail matters, so the prosecutor is motivated to push back hard on any statement that doesn't support their case. **How This Applied in DiNapoli** In **DiNapoli**, the defendants wanted to use statements from a **grand jury** where two witnesses had denied knowing about the crime. The defendants argued that these statements helped their case. However, the court found that the **prosecutor didn't have a "similar motive" to challenge those statements in the grand jury**. In the grand jury setting, the prosecutor didn't push back hard on those denials because they didn't need to---it wasn't a full-blown trial, and the purpose was just to gather enough evidence to see if charges should be filed. If this had been at trial, the prosecutor would likely have challenged these statements intensely, maybe even trying to prove they were lies. So, the court said that because the prosecutor wasn't fully motivated to challenge those statements in the grand jury, those statements **couldn't be used in the trial**. In this scenario, Microsoft wants to use Wanda's testimony from a **previous antitrust case** in a **new, private antitrust case** brought by Oracle. Since Wanda has died, Microsoft argues that her previous testimony should be admitted into evidence, even though Oracle didn't get a chance to question her in that earlier case. Oracle objects, claiming this testimony is **hearsay** because they couldn't cross-examine Wanda directly. **Key Issue: Hearsay and the "Former Testimony" Exception** Under **Rule 804(b)(1)** of the Federal Rules of Evidence, **former testimony** can be allowed as evidence in a new case if: 1. The witness is **unavailable** (in this case, Wanda has died). 2. The opposing party (or in civil cases, someone with a similar interest, like a "predecessor in interest") had a **similar motive and opportunity** to cross-examine the witness during the previous testimony. **Microsoft's Argument** Microsoft should argue that: 1. **Wanda is unavailable** because she has died. 2. **Oracle's interests** in challenging Wanda's testimony in the private antitrust case are **similar to the federal government's interests** in the original case because both Oracle and the government are alleging **antitrust violations against Microsoft**. They both have a similar goal: to show that Microsoft engaged in anti-competitive practices, so they would have similar motives in cross-examining Wanda's testimony. **Court's Likely Ruling** The court will need to decide if the federal government in the original case was effectively a **"predecessor in interest"** to Oracle, meaning Oracle's interest aligns closely enough with the government's to meet the similar motive requirement. The court will likely rule as follows: - **If the court finds that the government's and Oracle's motives were similar enough**, it may allow Wanda's previous testimony under the former testimony exception. The government, like Oracle, would have had a strong interest in challenging any testimony that supported Microsoft's case in an antitrust context, meaning they shared a similar purpose in questioning Wanda. - **If the court finds that Oracle's interests were significantly different from the government's** (for example, if Oracle's claims involve different details or scope not covered in the government case), then it might find that Oracle did not have a similar enough motive. In this case, the court would likely sustain Oracle's hearsay objection and exclude Wanda's testimony. **Conclusion** In summary, if the court views the government as sufficiently aligned with Oracle's interests in cross-examining Wanda, it will likely admit her testimony. Otherwise, the court will rule in favor of Oracle's hearsay objection, keeping the testimony out of the current case. In **Lloyd v. American Export Lines, Inc.**, the court had to decide whether testimony from a previous **Coast Guard hearing** could be used in a **civil lawsuit** brought by Alvarez, a crew member who claimed he was injured due to negligence by American Export Lines (Export). The case involved a **fight between Alvarez and another crew member, Lloyd**, on a ship, and the Coast Guard had already investigated the incident to determine if Lloyd's maritime credentials should be revoked due to misconduct. **Background** Alvarez argued that Export was negligent in allowing Lloyd to work on the ship, knowing Lloyd had violent tendencies. However, Lloyd, who was the only other person involved in the fight, wasn't available to testify in this civil case because he wasn't in court. Export wanted to use Lloyd's previous **testimony from the Coast Guard hearing** to show his side of the story, but Alvarez objected, saying this testimony was hearsay since Alvarez hadn't been able to cross-examine Lloyd in the Coast Guard hearing. **Key Issue: \"Predecessor in Interest\"** Under **Rule 804(b)(1)**, former testimony can sometimes be admitted as evidence if: 1. The witness is **unavailable**. 2. The current party (here, Alvarez) or a **"predecessor in interest"** had a similar opportunity and reason to question the witness in the earlier setting. The question was whether the **Coast Guard** in its investigation was considered a "predecessor in interest" to Alvarez, meaning it had a similar enough motive and opportunity to cross-examine Lloyd in the same way Alvarez would have wanted to in this civil case. **Court\'s Decision** The court decided that the Coast Guard *did* act as a \"predecessor in interest\" to Alvarez. Here's why: - **Similar Motive**: Both the Coast Guard and Alvarez had a common interest in exploring Lloyd's behavior during the fight. The Coast Guard was investigating Lloyd's misconduct, just as Alvarez was trying to show that Export was responsible for allowing a potentially violent person to work on the ship. - **Community of Interest**: The court found that, while the Coast Guard was representing public interests (safety in the merchant marine service) and Alvarez was pursuing a private interest (damages for his injury), both were ultimately focused on the same central facts about Lloyd\'s conduct. The court allowed the previous testimony because it concluded that the Coast Guard's questioning of Lloyd in its hearing was close enough to what Alvarez's legal team would have done in cross-examining him in this civil trial. **Dissenting Opinion** One judge disagreed, arguing that simply having a "similar motive" wasn't enough. They believed that a \"predecessor in interest\" should be someone more directly linked to Alvarez's interests and objectives. The Coast Guard's role was to ensure safety and uphold regulations, not to fully represent Alvarez's interests in getting compensation for injuries. This judge worried that allowing this testimony would set a precedent for admitting evidence from unrelated hearings, which could be unfair to parties like Alvarez, who didn't have direct control over those earlier proceedings. **Key Takeaway** The court's ruling highlights a **broad interpretation** of what counts as a "predecessor in interest," allowing previous testimony if there's a **shared focus on similar facts**, even if the parties aren't exactly aligned in their goals. However, the dissent raised concerns that this broad approach might be too lenient, potentially allowing unrelated prior testimonies to be used in ways that could disadvantage future litigants. **Notes and Questions** 1. **Distinguishing Grand Jury vs. Preliminary Hearing Testimony in Criminal Cases**: - **Grand Jury Testimony**: In a grand jury, the defendant doesn't have a right to cross-examine witnesses, so grand jury testimony cannot be used against them later under **Rule 804(b)(1)**. - **Preliminary Hearing Testimony**: Defendants have the right to examine witnesses in preliminary hearings, so that testimony might be used against them under **Rule 804(b)(1)**, as seen in cases like *United States v. Avants*. 2. **Using Co-Conspirator Statements in Criminal Trials**: - If a co-defendant (A) pleads guilty and gives statements during that plea process that could help the remaining defendant (B), **Rule 804(b)(1)** won't allow those statements to be used because the government didn't have the chance or the motivation to fully cross-examine A during their plea. This was held in *United States v. Jackson*. 3. **Debate over \"Intensity of Motivation\" in Former Testimony**: - In *DiNapoli*, the Second Circuit took a strict approach, requiring the same level of motivation to cross-examine a witness in both proceedings. This approach was criticized by the Ninth Circuit in *McFall*, which argued for a more general comparison, focusing on whether the overarching motives align rather than requiring identical intensity. 4. **Interplay of Rules 804(b)(1) and 801(d)(1)(A)**: - When a witness forgets details of a previous statement, that witness may be "unavailable" under **Rule 804(a)(3)** but also "subject to cross-examination" under **Rule 801**. This can allow prior inconsistent statements, like grand jury testimony, to be used under Rule 801, even though it wouldn't fit under **Rule 804(b)(1)**. 5. **Hearsay-within-Hearsay Issue with Transcripts**: - Using a transcript of former testimony introduces "hearsay-within-hearsay": - The witness's original statement is one layer of hearsay. - The court reporter's transcription is a second layer. - To admit the transcript, both layers must qualify under exceptions, such as **Rule 803(5)** (past recollection recorded) or **Rule 803(8)** (public records). 6. **Applying the \"Predecessor in Interest\" Concept in Civil Cases**: - In cases like *Lloyd*, a "predecessor in interest" can include parties with a similar interest in a case outcome, even if not directly related. If a similar community of interest exists (e.g., a prior party and the Coast Guard both investigating the same facts), it may meet Rule 804(b)(1) standards. 7. **Comparing \"Predecessor in Interest\" to Other Rules**: - **Rules 803(22)** and **803(23)** allow prior judgments to be used as evidence without requiring full preclusion, suggesting that **Rule 804(b)(1)** might also be applied more broadly and need not strictly follow preclusion principles.