Federal Rule of Evidence 804(b)(1)â•Žs â•œSimilar Motiveâ•š Test and the Admissibility of Grand Jury Testimony Against the Government

Fordham Law Review Fordham Law Review

Volume 79 Issue 3 Article 14

November 2011

Federal Rule of Evidence 804(b)(1)’s “Similar Motive” Test and the Federal Rule of Evidence 804(b)(1)’s “Similar Motive” Test and the

Admissibility of Grand Jury Testimony Against the Government Admissibility of Grand Jury Testimony Against the Government

Brandon Berkowski

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Brandon Berkowski,

Federal Rule of Evidence 804(b)(1)’s “Similar Motive” Test and the Admissibility of

Grand Jury Testimony Against the Government

, 79 Fordham L. Rev. 1213 (2011).

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1213

NOTES

FEDERAL RULE OF EVIDENCE 804(b)(1)’S

“SIMILAR MOTIVE” TEST AND THE

ADMISSIBILITY OF GRAND JURY TESTIMONY

AGAINST THE GOVERNMENT

Brandon Berkowski*

This Note examines the “similar motive” test of Federal Rule of Evidence

804(b)(1) as applied to grand jury testimony offered against the

government. Rule 804(b)(1) admits an unavailable witness’s prior

testimony hearsay when its opponent had a “motive” to develop it at the

previous proceeding that was “similar” to the motive its opponent would

have at trial. However, the U.S. Courts of Appeals have differed in their

interpretation of the rule’s “similar motive” language with respect to the

factors that judges should consider in the admissibility analysis for grand

jury testimony offered against the government. This Note examines the

development and purpose of the prior testimony hearsay exception as well

as recent circuit court cases that have applied Rule 804(b)(1) to grand jury

testimony offered against the government. It argues that certain factors

commonly considered by courts—primarily prosecutors’ strategic use of

grand jury questioning—are beyond the scope of Rule 804(b)(1) and should

not influence the “similar motive” inquiry. This Note proposes an

admissibility test for exculpatory grand jury testimony that avoids

consideration of these factors.

ABLE OF CONTENTS

NTRODUCTION ........................................................................................ 1215

THE PRIOR TESTIMONY HEARSAY EXCEPTION AND GRAND JURY

PROCEEDINGS ............................................................................... 1217

A. The Hearsay Prohibition and Its Exceptions .......................... 1218

B. The Admissibility of Prior Testimony Hearsay ....................... 1220

* J.D. Candidate, 2011, Fordham University School of Law; M.F.A., 2002, Brooklyn

College; B.A., 1998, University of Detroit Mercy. My thanks to Professor James Kainen for

his invaluable guidance while I worked through this Note’s ideas and drafts, and to Professor

Daniel Capra for introducing me to the case law that is the subject of this Note.

1214 FORDHAM LAW REVIEW [Vol. 79

C. The Development of the Prior Testimony Hearsay Exception

from the Common Law to Federal Rule of Evidence

804(b)(1) ............................................................................... 1222

1. Fairness, Necessity, and the Adversarial System ............. 1222

2. Prior Testimony Hearsay at Common Law ...................... 1223

3. The Codification of the Prior Testimony Hearsay

Exception ........................................................................ 1226

a. The Federal Rules of Evidence .................................. 1226

b. Federal Rule of Evidence 804(b)(1) ........................... 1228

D. Rule 804(b)(1) and Grand Jury Testimony ............................ 1229

1. The Admissibility of Grand Jury Testimony Under Rule

804(b)(1) ......................................................................... 1230

2. Rule 804(b)(1)’s “Opportunity and Similar Motive”

Requirement .................................................................... 1231

a. Opportunity ................................................................ 1231

b. Similar Motive ............................................................ 1233

i. Motive in the Preliminary Hearing and the Grand

Jury ..................................................................... 1234

ii. Other Motive Considerations .............................. 1238

II.

CASES APPLYING RULE 804(b)(1)’S “SIMILAR MOTIVE” TEST TO

GRAND JURY TESTIMONY OFFERED AGAINST THE

GOVERNMENT .............................................................................. 1240

A. The Second and First Circuits’ Narrow Admissibility

Decisions ............................................................................... 1241

1. The Second Circuit: United States v. DiNapoli .............. 1241

a. Facts and Procedural History .................................... 1241

b. The Supreme Court Decision in United States v.

Salerno ...................................................................... 1244

c. The Second Circuit Panel Decision on Remand ......... 1245

d. The Rehearing en Banc Decision: United States v.

DiNapoli ................................................................... 1246

e. Summary ..................................................................... 1248

2. The First Circuit: United States v. Omar ........................ 1249

B. The District of Columbia, Sixth, and Ninth Circuits’ Broad

Admissibility Decisions ......................................................... 1252

1. The District of Columbia Circuit: United States v.

Miller ............................................................................... 1252

2. The Sixth Circuit: United States v. Foster ...................... 1253

3. The Ninth Circuit: United States v. McFall .................... 1256

III.

ANALYSIS OF DECISIONS AND PROPOSED RESOLUTION .................. 1258

A. Analysis of Circuit Court Decisions ....................................... 1259

1. The Narrow Admissibility Decisions ............................... 1260

2. The Broad Admissibility Decisions ................................. 1262

3. Analysis of Deciding Factors ........................................... 1263

B. Proposed Resolution ............................................................... 1265

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1215

ONCLUSION ........................................................................................... 1270

NTRODUCTION

Federal Rule of Evidence 804(b)(1) is a hearsay exception governing the

admissibility of an unavailable witness’s testimony from a prior

proceeding.

The reliability of prior testimony and the fairness of

introducing it against a party depend primarily on whether the opposing

party had a chance at the prior proceeding to question the witness about the

issues now relevant at trial.

According to the rule, prior testimony is not

admissible unless the party against whom it is offered had “an opportunity

and similar motive to develop the testimony by direct, cross, or redirect

examination.”

Although this language clearly expresses the root purpose

of the exception—to protect a party from the admission of a witness’s past

testimony unless the party had a meaningful chance to question the witness

at the prior proceeding

—it has proved to be a challenging test for courts to

apply.

Since the enactment of the Federal Rules of Evidence, the U.S. Courts of

Appeals have split in their application of Rule 804(b)(1) to grand jury

testimony that the defendant offers against the government in a criminal

trial.

The factual circumstances underlying the split typically arise under

1. FED. R. EVID. 804(b)(1).

2. See id. advisory committee’s note (equating direct and redirect examination with

cross-examination for the purpose of this exception and explaining that fairness prohibits the

introduction of prior testimony against a party who did not examine the declarant);

California v. Green, 399 U.S. 149, 165 (1970) (reasoning that prior testimony that was

subject to cross-examination was sufficiently reliable to be admitted at trial); J

ACK B.

WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S EVIDENCE MANUAL ¶ 14.01[01][c] (1987)

(explaining the importance of adversarial examination in assuring the credibility of a

witness’s testimony).

3. F

ED. R. EVID. 804(b)(1).

4. See 4 S

TEPHEN A. SALTZBURG ET AL., FEDERAL RULES OF EVIDENCE MANUAL

§ 804.02[4] (9th ed. 2006) (“The similar motive inquiry is essentially a hypothetical one: is

the motive to develop the testimony at the prior time similar to the motive that would exist if

the declarant were produced (which of course he is not) at the current trial or hearing?”);

Michael M. Martin, The Former-Testimony Exception in the Proposed Federal Rules of

Evidence, 57 I

OWA L. REV. 547, 557 (1972) (“In determining whether the prior examination

was adequate to protect the interest of the opponent in the present case, the only question . . .

is whether the examiner had ‘motive and interest [for developing the testimony] similar to

those of the party against whom now offered.’” (alteration in original) (quoting Rule

804(b)(1) as originally promulgated by the U.S. Supreme Court, discussed infra at note 100

and accompanying text)).

5. See 2 M

CCORMICK ON EVIDENCE § 304, at 355–56 (Kenneth S. Broun ed., 6th ed.

2006) (explaining that “the Circuits appear divided as to whether in typical grand jury

situations exculpatory testimony meets this [‘similar motive’] requirement of the Rule”);

Martin, supra note 4, at 557 (explaining that the common law formulation of the exception

was easier to apply than the Federal Rule, in part because the Rules’ drafters provided no

criteria to guide judges in its application).

6. See 2 M

CCORMICK, supra note 5, § 304, at 355 (describing this split); see also infra

Part II.

1216 FORDHAM LAW REVIEW [Vol. 79

similar circumstances.

The government conducts a grand jury

investigation seeking the indictment of one or more suspects.

At some

point during the investigation, either before or after an indictment is

returned, the prosecution calls a witness who offers testimony favorable to a

suspect.

At trial, the defense subpoenas this grand jury witness, but the

witness invokes the Fifth Amendment privilege against self-incrimination

and refuses to testify.

The government, which may have obtained the

witness’s prior testimony by granting the witness immunity at the grand

jury proceeding, refuses to grant immunity at trial.

The defense then

seeks to introduce the witness’s exculpatory grand jury testimony pursuant

to Rule 804(b)(1), and the court must decide whether the prosecution’s

motive for challenging the testimony at the grand jury was similar to the

motive it would have if the witness appeared at trial.

The U.S. Courts of Appeals for the Second and First Circuits have

construed the rule’s “similar motive” requirement narrowly in the grand

jury context and issued decisions suggesting that exculpatory grand jury

testimony would rarely be admissible against the government.

contrast, the U.S. Courts of Appeals for the District of Columbia, Sixth, and

Ninth Circuits have compared the prosecution’s respective motives “at a

high level of generality”

and issued decisions suggesting that exculpatory

grand jury testimony is almost always admissible against the government

because the prosecution’s “motive” at both proceedings is simply to

challenge any testimony adverse to its theory of the case.

In evidentiary terms, Rule 804(b)(1) balances fairness to litigants with

the fact-finders’ need for information by admitting prior testimony hearsay

that meets a certain standard of reliability.

The rule does not promote a

general policy favoring either the government or the defendant in criminal

proceedings; and, this Note argues, courts’ admissibility analyses under the

rule’s “similar motive” test should not consider the strategic use of

questioning common to grand jury examinations.

In each decision

contributing to the circuit split that is the subject of this Note, the court

reached its conclusion based on analysis of a common set of factors.

This

7. The facts of United States v. DiNapoli, a case against several defendants accused of

participating in a construction bid-rigging scheme, are illustrative. 8 F.3d 909, 910 (2d Cir.

1993). See also infra Part II.A.1.

8. See, e.g., DiNapoli, 8 F.3d at 910.

9. See, e.g., id. at 910–11 (describing the grand jury proceeding of two witnesses who

testified favorably to the defendants after indictments were returned).

10. See, e.g., id. at 911.

11. See, e.g., United States v. Salerno, 937 F.2d 797, 804 (2d Cir. 1991), rev’d, 505 U.S.

317 (1992).

12. See, e.g., DiNapoli, 8 F.3d at 911–12; see also F

ED. R. EVID. 804(b)(1).

13. See United States v. Omar, 104 F.3d 519, 523 (1st Cir. 1997); DiNapoli, 8 F.3d at

914–15.

14. See United States v. McFall, 558 F.3d 951, 962 (9th Cir. 2009).

15. See id. at 963; United States v. Foster, 128 F.3d 949, 955–56 (6th Cir. 1997); United

States v. Miller, 904 F.2d 65, 68 (D.C. Cir. 1990).

16. See infra Part I.C.1.

17. See infra Part III.B; see also infra note 225 and accompanying text.

18. See infra Part III.A.3.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1217

Note examines the circuit court cases, paying special attention to the factors

on which the courts based their decisions, and argues that some of those

factors are beyond the scope of Rule 804(b)(1) and should not be

considered in the “similar motive” analysis. This Note then proposes an

admissibility test for grand jury testimony offered against the government

that avoids the impermissible factors.

Part I.A–C examines the development of the prior testimony hearsay

exception from the common law through its codification in the Federal

Rules of Evidence, paying special attention to the purposes the rule is meant

to serve in contemporary evidence law. Part I.D examines the application

of Rule 804(b)(1) to grand jury testimony offered against the government.

This part highlights the difficulty courts face in interpreting the rule’s

“similar motive” language by showing how its application to the same

factors—in different contexts—has led to opposing admissibility holdings.

Part II discusses the principal cases where courts have applied Rule

804(b)(1)’s “similar motive” test to grand jury testimony offered against the

government, emphasizing the particular factors that influenced each court’s

decision. Part III analyzes the two groups of cases contributing to the

circuit split, as well as the factors upon which the courts based their

admissibility decisions, in light of Rule 804(b)(1)’s evidentiary purposes.

This Part argues that certain factors the courts considered do not affect the

motive to develop testimony and thus have no legitimate place in the Rule

804(b)(1) analysis. Finally, Part III.B proposes an objective “similar

motive” test designed to meet the evidentiary purposes of Rule 804(b)(1)

while avoiding the impermissible factors.

This Note concludes that courts should find “similar motive” and admit

grand jury testimony against the government only where a reasonable

prosecutor, proceeding as if the witness were testifying at trial, would have

had a motive to discredit the witness’s grand jury testimony. In other

words, considering the scope of the investigation and the information

available to the prosecution at the time of questioning, the court should

admit exculpatory grand jury testimony if a reasonable prosecutor would

have had a motive to challenge the testimony on the issues now relevant at

trial, regardless of whether the prosecution failed to raise such a challenge

for strategic reasons or otherwise.

THE PRIOR TESTIMONY HEARSAY EXCEPTION AND GRAND JURY

PROCEEDINGS

The hearsay exception for prior testimony has a long history in the

common law prior to its codification as Federal Rule of Evidence

804(b)(1).

Part I.A discusses the general prohibition against hearsay

evidence and places the exception for prior testimony in context with the

other hearsay exceptions. Part I.B explains the historical justification for

admitting prior testimony and discusses the requirements for admissibility.

Part I.C discusses the competing evidentiary concerns that are balanced by

19. See infra Part I.C.

1218 FORDHAM LAW REVIEW [Vol. 79

the prior testimony hearsay exception and how that balance has shifted from

the common law to the exception’s codification in the Federal Rules of

Evidence. Finally, Part I.D explains the “opportunity” and “similar motive”

elements of Rule 804(b)(1) and compares the application of the rule to

grand jury and preliminary hearing testimony. This comparison highlights

the manipulability of the rule’s “similar motive” language and lays the

foundation for Part II’s examination of the circuit split in grand jury

testimony admissibility decisions.

A. The Hearsay Prohibition and Its Exceptions

The reliability of any witness’s testimony depends on the quality of the

witness’s perception, memory, and narration, and the degree to which the

witness testifies with sincerity.

The American legal system enables

evaluation of these characteristics of witness testimony by requiring that

testimony be (1) delivered under oath, (2) delivered in the presence of the

fact-finder, and (3) subject to examination by its proponent and immediate

cross-examination by its opponent.

When a statement is made without the

benefit of any one of these conditions, its reliability is subject to question

and it is inadmissible hearsay.

Hearsay statements that are not covered by

an exception to the general prohibition are also inadmissible out of concern

for fairness to litigants.

The American legal system relies on the principle

that evidence should not be admitted against a party unless that party has—

or, in the case of prior testimony, has had—a chance to rebut it.

Because

most hearsay was not subject to examination by the party against whom it is

offered at trial, fairness dictates that it should be inadmissible.

Formalistic guarantees of reliability and fairness aside, the law of evidence

generally seeks to admit evidence that is potentially probative, especially

when exclusion might result in injustice.

This is especially true when the

evidence under consideration offers other assurances that it is trustworthy

or that it would be fair to admit it against a litigant.

Hence, there exist

20. See FED. R. EVID. art. VIII advisory committee’s note.

21. See id.

22. See Martin, supra note 4, at 550.

23. See Glen Weissenberger, The Former Testimony Hearsay Exception: A Study in

Rulemaking, Judicial Revisionism, and the Separation of Powers, 67 N.C.

L. REV. 295, 301

(1989).

24. See id.

25. See id.

26. See F

ED. R. EVID. art. VIII advisory committee’s note (“Common sense tells that

much evidence which is not given under the three conditions may be inherently superior to

much that is. Moreover, when the choice is between evidence which is less than best and no

evidence at all, only clear folly would dictate an across-the-board policy of doing without.

The problem thus resolves itself into effecting a sensible accommodation between these

considerations and the desirability of giving testimony under the ideal conditions.”); 2

PENCER A. GARD, JONES ON EVIDENCE: CIVIL AND CRIMINAL § 8:9, at 179 (6th ed. 1972);

Martin, supra note 4, at 550.

27. See Martin, supra note 4, at 550.

28. See F

ED. R. EVID. 804(b)(1) advisory committee’s note (explaining that fairness

concerns are not implicated in the admission of prior testimony that has been sufficiently

cross-examined by the party opposing it).

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1219

many exceptions to the general prohibition against the admission of hearsay

for various classes of evidence;

and some types of evidence that would

otherwise be considered hearsay are entirely omitted from the definition.

The Federal Rules of Evidence have divided admissible hearsay into two

broad categories, “one dealing with situations where availability [at trial] of

the declarant is regarded as immaterial and the other with those where

unavailability is made a condition to the admission of the hearsay

statement.”

The exceptions codified in Federal Rule of Evidence 803, where

availability of the declarant is immaterial, admit classes of hearsay with the

shared characteristic that the circumstances surrounding the statements

guarantee their trustworthiness sufficiently to overcome concerns about lack

of oath, personal presence, or immediate cross-examination.

In other

words, the hearsay evidence admissible under this rule may be the best

evidence available, and there is a perceived need for it at trial, so it is

admissible without regard for whether the declarant could be produced to

testify on the same subject under the three conditions for reliability.

The

exceptions codified in Rule 804, however, govern evidence that is not the

best that could ideally be obtained.

Nonetheless, it is admissible because

(1) the declarant is no longer available and (2) the conditions under which

the hearsay was obtained generated enough circumstantial guarantees of its

trustworthiness that its probative value is not outweighed by its lack of

29. See FED. R. EVID. art. VIII advisory committee’s note (“The solution evolved by the

common law has been a general rule excluding hearsay but subject to numerous exceptions

under circumstances supposed to furnish guarantees of trustworthiness.”). For the types of

hearsay evidence admissible because they offer other circumstantial guarantees of reliability,

see F

ED. R. EVID. 803, 804.

30. See F

ED. R. EVID. 801(d) (“Statements Which Are Not Hearsay”). One example of a

type of evidence excluded from the hearsay definition is a statement by a party-opponent that

is admissible against that party as its own statement, despite its having been made under

circumstances lacking the guarantees of reliability. Such a statement is clearly hearsay under

the definition in F

ED. R. EVID. 801(a)–(c), but, according to FED. R. EVID. 801(d)(2), it is

excluded from the definition.

31. F

ED. R. EVID. art. VIII advisory committee’s note (referring to FED. R. EVID. 803

(“Availability of Declarant Immaterial”), 804 (“Declarant Unavailable”)).

32. See F

ED. R. EVID. 803 advisory committee’s note (“The present rule proceeds upon

the theory that under appropriate circumstances a hearsay statement may possess

circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the

declarant in person at the trial even though he may be available.”).

33. See id. An example of this type of evidence is the “excited utterance,” which is “[a]

statement relating to a startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition.” F

ED. R. EVID. 803(2). Hearsay

statements of this type are admissible on the theory that the circumstances of their utterance

“may produce a condition of excitement which temporarily stills the capacity of reflection

and produces utterances free of conscious fabrication.” F

ED. R. EVID. 803 advisory

committee’s note. They are spontaneous and therefore do not implicate the testimonial

capacities of perception, memory, narration, and sincerity to the same degree as non-

spontaneous types of hearsay. The reliability of these statements would thus not be

improved by delivery under the conditions of oath, personal presence, or immediate cross-

examination. See id.

34. See F

ED. R. EVID. 804(b) advisory committee’s note.

1220 FORDHAM LAW REVIEW [Vol. 79

conformity with the three conditions for reliability.

According to the

advisory committee, “[Rule 804] expresses preferences: testimony given

on the stand in person is preferred over hearsay, and hearsay, if of the

specified quality, is preferred over complete loss of the evidence of the

declarant.”

Prior testimony is among the types of hearsay classified under

Rule 804.

B. The Admissibility of Prior Testimony Hearsay

Prior testimony hearsay is a second-best type of evidence that would not

be admissible if the witness were available to testify in person.

Of the

three guarantees of testimonial reliability, prior testimony hearsay only

lacks the second: it was not delivered in open court in the presence of the

fact-finder and the adversary.

The declarant was under oath at the prior

proceeding, however, and was subject to immediate cross-examination or

its equivalent.

Historically, delivering testimony in the personal presence

35. See, e.g., Glen Weissenberger, Federal Rule of Evidence 804: Admissible Hearsay

from an Unavailable Declarant, 55 U. CIN. L. REV. 1079, 1106–07 (1987). Explaining the

rationale behind Rule 804(b)(2)’s admission of “dying declarations,” Professor

Weissenberger states:

The exception for deathbed statements . . . originally derived its assumed

guarantee of trustworthiness from the religious belief that a dying person would

not meet his maker with a lie on his lips. In the more secular world, however, this

rationale for the exception has largely been supplanted by the theory that the

powerful psychological forces bearing on the declarant at the moment of death

engender a compulsion to speak truthfully.

Id. (footnotes and internal quotation marks omitted). There is thus no need for such

testimony to have been delivered under oath, in the personal presence of the fact-finder, and

subject to immediate cross-examination. If the deathbed declarant were still “available” to

testify, however, the declarant’s live testimony on the same matter would be preferred. See

ED. R. EVID. 804(b) advisory committee’s note; see also Jack R. Jelsema et al., Comment,

Hearsay Under the Proposed Federal Rules: A Discretionary Approach, 15 W

AYNE L. REV.

1077, 1102 (1969) (“The theory underlying the . . . category of exceptions, which requires

the declarant to be unavailable as a witness, is that although it would be preferable to have

the declarant testify as a witness, if he is unavailable there is sufficient circumstantial

assurance of accuracy so that it is better to receive the statement in evidence than to do

completely without it.”).

36. F

ED. R. EVID. 804(b) advisory committee’s note.

37. F

ED. R. EVID. 804(b)(1).

38. United States v. Inadi, 475 U.S. 387, 394–95 (1986) (“[F]ormer testimony often is

only a weaker substitute for live testimony. It seldom has independent evidentiary

significance of its own, but is intended to replace live testimony. If the declarant is available

and the same information can be presented to the trier of fact in the form of live testimony,

with full cross-examination and the opportunity to view the demeanor of the declarant, there

is little justification for relying on the weaker version. When two versions of the same

evidence are available, longstanding principles of the law of hearsay . . . favor the better

evidence. But if the declarant is unavailable, no ‘better’ version of the evidence exists, and

the former testimony may be admitted as a substitute for live testimony on the same point.”

(citation omitted)).

39. Martin, supra note 4, at 550–51.

40. See id.; 2 H.

C. UNDERHILL, A TREATISE ON THE LAW OF CRIMINAL EVIDENCE § 420

(Philip F. Herrick ed., 5th ed. 1973); see also F

ED. R. EVID. 804(b)(1) advisory committee’s

note (explaining that direct and redirect examination of one’s own witness are the equivalent

of cross-examination for the purposes of the rule). Whether the questioning that took place

at the prior proceeding actually satisfies the reliability requirement of cross-examination is

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1221

of the fact-finder has been important because the demeanor of the witness,

in addition to the recorded evidence of what the witness says, offers

“valuable clues” to the fact-finder.

Also, “the solemnity of the occasion

and the possibility of public disgrace” created a disincentive for witnesses

to offer false testimony.

Today, however, the importance of these

guarantees of testimonial trustworthiness is eclipsed by cross-examination’s

role in ensuring reliability.

Dean John Henry Wigmore has called cross-

examination “the greatest legal engine ever invented for the discovery of

truth.”

Given that prior testimony has theoretically been subject to cross-

examination (or to direct or redirect examination)

by a party with interests

similar to those of the party against whom it is admitted, it has been argued

that “former testimony is the strongest hearsay” and that it should be

admissible regardless of whether the declarant is available.

Some

commentators have even argued that prior testimony is not hearsay at all.

The drafters of the Federal Rules of Evidence did not endorse this position

but nevertheless accepted the common law understanding that prior

testimony satisfies the primary evidentiary concerns of fairness and

reliability and should therefore be admissible under an exception to the

Rules’ general prohibition against hearsay.

central to this Note’s discussion. But, for general purposes, and as distinguished from other

types of admissible hearsay, prior testimony that is admitted has met the reliability

requirement of immediate cross-examination. F

ED. R. EVID. 804(b)(1) advisory committee’s

note.

41. F

ED. R. EVID. art. VIII advisory committee’s note (citing Universal Camera Corp. v.

NLRB, 340 U.S. 474, 495–96 (1951)).

42. Id. In the case of prior testimony, this last function of impressing the witness with

solemnity is still met because, even though the witness is not present at trial, the witness

nonetheless delivered testimony in the course of a formal proceeding. See F

ED. R. EVID.

804(b)(1) (admitting prior testimony only when “given as a witness at another hearing . . . or

in a deposition taken in compliance with law in the course of . . . [a] proceeding”).

43. See 2 G

ARD, supra note 26, § 9:25; Martin, supra note 4, at 553–54 (“Given the faith

which the Anglo-American adversary system places in the efficacy of cross-examination, it

is not surprising that the most important feature of the former-testimony exception is that

which requires such testimony to have been given in a situation where an opportunity existed

to utilize that truth-testing device.”); Weissenberger, supra note 23, at 301 n.30 (“‘[T]he

[Anglo-American] belief that no safeguard for testing the value of human statements is

comparable to that furnished by cross-examination, and the conviction that no statement . . .

should be used as testimony until it has been probed and sublimated by that test’ forms the

basis for the norm that probative evidence should be rejected if it cannot be rebutted by the

adverse party.” (quoting 5 J

OHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW

§ 1367 (Chadbourn rev. 1974))).

44. 5 J

OHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1367 (Chadbourn

rev. 1974).

45. See F

ED. R. EVID. 804(b)(1).

46. Id. advisory committee’s note.

47. See, e.g., 5 W

IGMORE, supra note 44, § 1370; Weissenberger, supra note 23, at 296

n.6 (listing commentators who disagree whether prior testimony should be characterized as

hearsay).

48. See F

ED. R. EVID. art. VIII advisory committee’s note (explaining the common law

basis for the hearsay exceptions codified in the Federal Rules of Evidence); 5 W

IGMORE,

supra note 44, § 1422 (explaining that certain hearsay evidence may be accepted untested

because its trustworthiness is circumstantially guaranteed); Weissenberger, supra note 35, at

1095 (noting that “[t]he common law exception to the hearsay rule codified in Rule

1222 FORDHAM LAW REVIEW [Vol. 79

Unavailability of the witness is also an important requirement for

statements to be admissible under the prior testimony hearsay exception.

“Unavailability” includes situations in which the declarant (1) is exempted

from testifying on the ground of privilege, (2) refuses to testify despite

being ordered by the court to do so, (3) testifies to a lack of memory

concerning the prior testimony, (4) is unable to testify because of physical

or mental illness or death, or (5) is absent and unable to be procured by the

party seeking to offer the testimony.

A declarant is not “unavailable” if

the proponent of the testimony in any way procured the declarant’s

unavailability.

Under certain circumstances, as discussed below, a

witness’s unavailability in criminal cases is due to the witness’s claim of

the privilege against self-incrimination and the prosecution’s refusal to

grant immunity.

The government’s refusal to immunize a witness under

these circumstances is not considered “procurement” of the witness’s

unavailability under Rule 804(b)(1).

C. The Development of the Prior Testimony Hearsay Exception from the

Common Law to Federal Rule of Evidence 804(b)(1)

The prior testimony hearsay exception balances the competing

evidentiary concerns of fairness to litigants and the necessity of information

for fact-finders.

Although the purpose of the exception has remained

consistent throughout its history, the balance between these concerns has

not.

This section explains that the exception is rooted in a desire to

promote strict fairness to litigants. Over time, however, the exception’s

requirements were relaxed to allow more prior testimony to be admitted;

when the exception was codified as part of the Federal Rules of Evidence,

the drafters were conscious to write a rule that more evenly balanced

concerns for fairness with concerns for necessity.

1. Fairness, Necessity, and the Adversarial System

A tension exists in the law of evidence between the desire to provide

fact-finders with the greatest amount of information available—to increase

the accuracy of decisions rendered—and the desire to exclude otherwise

804(b)(1) is justified by the traditional policies of necessity and trustworthiness,” and that

trustworthiness, like adversarial fairness, is a function of cross-examination).

49. See United States v. Inadi, 475 U.S. 387, 394–95 (1986).

50. F

ED. R. EVID. 804(a)(1)–(5).

51. F

ED. R. EVID. 804(a).

52. See, e.g., United States v. Salerno, 937 F.2d 797, 804 (2d Cir. 1991), rev’d, 505 U.S.

317 (1992).

53. See, e.g., United States v. Lang, 589 F.2d 92, 95–96 (2d Cir. 1978) (“[T]he law

appears to be well settled that the power of the Executive Branch to grant immunity to a

witness is discretionary and no obligation exists on the part of the United States Attorney to

seek such immunity.”); see also Daniel J. Capra, ‘Salerno,’ Plain Meaning and the Supreme

Court, N.Y.

L.J., July 17, 1992, at 3.

54. See infra Part I.C.1.

55. See infra Part I.C.2.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1223

relevant information when its admission would be unfair to litigants.

the United States, evidence law generally developed with an emphasis on

fairness to litigants.

This development could be expected, given the

adversarial character of America’s legal system.

Truth is said to emerge

from the contest between parties, each advocating strenuously for its own

cause, with the advocacy of each kept in check by a neutral judge who

interprets the law and enforces procedural rules to ensure that the contest is

fair.

The hearsay exception admitting prior testimony, as part of this

larger body of evidence law, also developed with an early emphasis on

fairness to litigants.

2. Prior Testimony Hearsay at Common Law

The admissibility inquiry for prior testimony at common law was

concerned with “whether the examination of the witness at the prior

proceeding was substantially similar to that which would have occurred at

the current proceeding if the witness had testified.”

No prior testimony

would be admitted against a party unless the development of that testimony

at the previous proceeding could be fairly attributed to the party opposing

it.

To determine whether this standard had been met, common law courts

examined the “identity of parties” and the “identity of issues” at the two

proceedings.

Initially, prior testimony was not admissible unless the parties and issues

were exactly the same at both proceedings.

This early approach

guaranteed a high degree of fairness to litigants,

but it often proved too

56. See Lloyd v. Am. Exp. Lines, Inc., 580 F.2d 1179, 1185 (3d Cir. 1978) (“[FED. R.

EVID. 804(b)] was originally designed by the Advisory Committee . . . to strike a proper

balance between the recognized risk of introducing testimony of one not physically present

on a witness stand and the equally recognized risk of denying to the fact-finder important

relevant evidence.”); Weissenberger, supra note 23, at 297–98 (discussing “fairness” versus

“accuracy” in the context of different policy approaches to the admission of evidence and

explaining the connection between availability of information to fact-finders and their ability

to render decisions).

57. See Weissenberger, supra note 23, at 302.

58. See id. at 297 n.13.

59. See id. By contrast, in civil law countries that use an inquisitorial system, truth can

be said to emerge from an authority’s independent investigation into the facts of the case,

and accuracy—rather than fairness—is a more pressing concern of evidentiary law. See id. at

nn.12–13, 300–03.

60. See id. at 302 (noting that “the earliest evidentiary rules developed in response to

concerns for adversarial fairness” and also citing United States v. Inadi, 475 U.S. 387, 394–

95 (1986)).

61. Weissenberger, supra note 35, at 1099.

62. See F

RANCIS BULLER, AN INTRODUCTION TO THE LAW RELATIVE TO TRIALS AT NISI

PRIUS 239 (New York, I. Riley & Co. 1806) (“[I]t is against natural justice that a man should

be concluded by proofs in a cause to which he was not a party.”); 5 W

IGMORE, supra note

44, § 1386; Weissenberger, supra note 23, at 307–08.

63. F

ED. R. EVID. 804(b)(1) advisory committee’s note; Weissenberger, supra note 35, at

1099.

64. Weissenberger, supra note 23, at 306–07.

65. The “mutuality” requirement respecting both parties, for instance, ensured that no

party could benefit by offering testimony against the other which could not also be offered

1224 FORDHAM LAW REVIEW [Vol. 79

restrictive for fact-finders because it excluded a great deal of evidence that

became inadmissible as a result of the declarants’ unavailability.

address this “necessity” concern and allow a greater balance of prior

testimony to be admitted, common law courts developed qualifications to

the same-parties requirement and less restrictive standards concerning the

similarity of issues.

The first qualification loosened the identity of parties requirement to

allow prior testimony to be admitted against the party that developed it,

regardless of the identity of the other party at the two proceedings.

The

requirement was then further relaxed to admit testimony against a party that

was developed not by that party, but by its predecessor.

Courts engrafted

privity requirements from property law onto the “identity of parties” inquiry

and required privity in “blood, law, or estate”

to ensure some basis for

binding a party to testimony it did not itself develop.

Over time, common law courts also shifted to demand not precise but

merely “substantial” “identity of issues” between prior and subsequent

proceedings.

As one leading treatise explains, insistence upon the issues

being precisely identical is more fitting if the question is one of estoppel or

res judicata—in other words, of the fairness of binding a party.

But where

necessity concerns take precedence, and “the question is not of binding

anyone but merely of salvaging the testimony,” insistence upon precise

identity of issues is out of place.

against itself. 5 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S FEDERAL

EVIDENCE § 804.04[5], at 804-47 (1997).

66. See 5 W

IGMORE, supra note 44, §§ 1420–21 (explaining, generally, the relationship

between the principle of “necessity” and the admissibility of hearsay evidence); Martin,

supra note 4, at 555.

67. See Martin, supra note 4, at 555; see also 2 M

CCORMICK, supra note 5, § 304, at 354

(“The requirement has become, not a mechanical one of identity or even of substantial

identity of issues, but rather that the issues in the first proceeding, and hence the purpose for

which the testimony was offered, must have been such as to produce an adequate motive for

testing on cross-examination the credibility of the testimony.”).

68. Weissenberger, supra note 23, at 307. This relaxation of the original requirement

that both parties be the same at both proceedings was justified on the simple theory that “it

appeared fair to estop . . . a party from objecting to evidence developed by that party.” Id.

69. Id.

70. Martin, supra note 4, at 555.

71. See Weissenberger, supra note 23, at 308. This expansion was justified on the

theory that “[i]t did not appear unfair to hold a party responsible for a previous litigant’s

examination or cross-examination of a witness when the party against whom the prior

testimony was offered had succeeded to the position of the predecessor litigant conducting

the examination or cross-examination in the prior action,” and, as the party’s successor,

“stood in the place of the predecessor and succeeded to all of the benefits and liabilities of

that interest.” Id.

72. See 2 M

CCORMICK, supra note 5, § 304, at 353 (citing several cases); 3 CHARLES E.

TORCIA, WHARTON’S CRIMINAL EVIDENCE § 650, at 375–76 (13th ed. 1973) (citing several

cases).

73. 2 M

CCORMICK, supra note 5, § 304, at 353.

74. Id.; see also In re White’s Will, 141 N.E.2d 416, 418 (N.Y. 1957) (admitting prior

testimony concerning capacity to manage affairs in a later proceeding concerning

competency to make a will).

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1225

In the nineteenth and twentieth centuries, the focus of evidence law, as

reflected in evidentiary rules, shifted from ensuring fairness to litigants to

encouraging accuracy of information.

The formalistic “identity of

parties” inquiry—engrafted with property-law concepts of privity—was

criticized, and it was recognized that prior testimony could meet fairness

requirements and provide necessary information to fact-finders without

adhering to the restrictive “identity of parties” test.

Dean Wigmore

ensured that courts would eventually adopt a more liberal version of the

rule when he famously explained how a concern with the parties’

“interests” could justify a departure from strict privity requirements.

1899, he wrote:

[A]ll that is essential is that the present opponent should have had a fair

opportunity of cross-examination; consequently, a change of parties

which does not effect such a loss does not prevent the use of the

testimony . . . and the principle also admits the testimony where the

parties, though not the same, are so privy in interest . . . that the same

motive and need for cross-examination existed.

Rather than rely on a privity relationship between parties, Dean Wigmore

recognized the importance of inquiring into each party’s “interest” in

developing prior testimony through cross-examination as the key to

ensuring testimonial reliability and adversarial fairness.

Thus, Dean

Wigmore articulated the general shift in evidence law from fairness to

necessity and refocused attention from the identity of parties and issues to

the underlying “motive” for developing testimony, which encompasses

both.

Since then, according to McCormick’s treatise, the inquiry has

75. See Weissenberger, supra note 23, at 309; see also supra note 56 and accompanying

text.

76. See Martin, supra note 4, at 555–56; Weissenberger, supra note 23, at 309–10.

Employing a hypothetical where two parties individually sue an airline after an accident that

injured them both, Professor Judson F. Falknor demonstrates how a fairness argument based

on concern for privity of relationship between the parties would exclude one party from

using otherwise relevant testimony developed in the other’s trial. See Judson F. Falknor,

Former Testimony and the Uniform Rules: A Comment, 38 N.Y.U. L. Rev. 651, 654–55

(1963). But, Professor Falknor argues, if the concern was not with privity but strictly with

the “interest and motive” that the two parties might individually have had to examine the

witness, then the “social interest in achieving a just and correct result” would favor a rule

that admits the testimony because the two parties, from the perspective of the testimony

itself, had the same “interest and motive” to develop it. See id. at 655.

77. See Martin, supra note 4, at 556; Weissenberger, supra note 23, at 309–10.

78. 1 S

IMON GREENLEAF, A TREATISE ON THE LAW OF EVIDENCE § 163a, at 278–79 (John

Henry Wigmore rev., 16th ed., Boston, Little, Brown, & Co. 1899) (emphasis added).

79. See Martin, supra note 4, at 555–56.

80. See id. at 556 (“While old ways died hard, the courts gradually progressed away

from the requirement of literal identity of parties and issues toward a consideration of the

reliability of the testimony in light of the circumstances. Accordingly, increasing attention

was given to two related issues: (1) Whether the opponent’s interest was represented in the

first hearing, rather than whether there was identity of parties or privies on both sides, and

(2) whether the issues in the two hearings were similar to the extent that the opponent in the

first examination had a motive and interest to develop the testimony similar to those which

the present opponent would have if he were cross-examining.” (footnotes omitted)); see also

ED. R. EVID. 804(b)(1) advisory committee’s note (explaining the connection between

1226 FORDHAM LAW REVIEW [Vol. 79

become whether “the issues in the first proceeding, and hence the purpose

for which the testimony was offered, [were] such as to produce an adequate

motive for testing on cross-examination the credibility of the testimony.”

Notably, the common law admissibility inquiry for prior testimony, while

concerned with the parties involved in proceedings and the issues

adjudicated at those proceedings, did not consider the type of proceeding at

which the prior testimony was developed as part of the inquiry.

The focus

was first on the identity of parties and issues and later on the parties’

“interests” or “motivations.”

But the prior proceeding’s type provided

nothing independently to the admissibility inquiry.

3. The Codification of the Prior Testimony Hearsay Exception

a. The Federal Rules of Evidence

The Federal Rules of Evidence grew out of an effort initiated by U.S.

Supreme Court Chief Justice Earl Warren, who, in 1965, appointed an

advisory committee to draft uniform rules of evidence for use in the federal

courts.

This committee, composed of judges, practitioners, and

academics, drew from the common law of evidence as well as the Model

Code of Evidence (promulgated in 1942) and the Uniform Rules of

Evidence (promulgated in 1953).

In 1972, the advisory committee

delivered its completed rules to the Supreme Court, which transmitted them

to the Congress the following year under the Rules Enabling Act.

The

Rules would have become effective on July 1, 1973, but for a bill requiring

Congress to affirmatively approve them.

Both the House and Senate

Judiciary Committees scrutinized the proposed rules, and, after many

amendments, Congress finally enacted them in 1975.

In their treatment of hearsay, the Federal Rules of Evidence incorporate

the liberalizations in admissibility that developed over time at the common

law.

When confronting the problem of how to handle hearsay under the

motive and interest to cross-examine at prior and current proceedings and “identity of

issues”).

81. 2 M

CCORMICK, supra note 5, § 304, at 354.

82. See 2 B

URR W. JONES, THE LAW OF EVIDENCE: CIVIL AND CRIMINAL § 311 (Spencer

A. Gard rev., 5th ed. 1958); 2 M

CCORMICK, supra note 5, § 304, at 354.

83. See supra notes 64–81 and accompanying text.

84. See 2 J

ONES, supra note 82, § 311; 2 MCCORMICK, supra note 5, § 304, at 354; see

also Martin, supra note 4, at 552 (“Federal Rule [804(b)(1)] places emphasis on the

testimony itself, with the nature of the prior hearing being unimportant except to the extent

that any such prior hearing did not present an opportunity for cross-examination equivalent

to cross-examination in the present proceeding.”).

85. G

EORGE FISHER, EVIDENCE 3 (2d ed. 2008).

86. Id.

87. Id.; Weissenberger, supra note 23, at 312.

88. Act of Mar. 30, 1973, Pub. L. No. 93-12, 87 Stat. 9; Weissenberger, supra note 23,

at 312.

89. See Weissenberger, supra note 23, at 295, 312–16.

90. See David Robinson, Jr., From Fat Tony and Matty the Horse to the Sad Case of

A.T.: Defensive and Offensive Use of Hearsay Evidence in Criminal Cases, 32 H

OUS. L.

REV. 895, 897–99 (1995); see also supra Part I.C.2.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1227

Federal Rules, the advisory committee noted the three conditions that

historically guaranteed the reliability of testimony—oath, presence before

the fact-finder, and immediate cross-examination—but also recognized:

Common sense tells that much evidence which is not given under the

three conditions may be inherently superior to much that is. Moreover,

when the choice is between evidence which is less than best and no

evidence at all, only clear folly would dictate an across-the-board policy

of doing without. The problem thus resolves itself into effecting a

sensible accommodation between these considerations and the desirability

of giving testimony under the ideal conditions.

The advisory committee recognized the fundamental conflict between the

desire to exclude hearsay out of concern for fairness to litigants and the

desire to admit all relevant evidence as an aid to accurate decision

making.

The common law’s solution to this problem was a general rule

excluding hearsay, but subject to many exceptions for particular classes of

hearsay that were deemed especially trustworthy.

That scheme was

subject to criticism, and the advisory committee evaluated other systems for

determining hearsay admissibility before ultimately deciding that the

Federal Rules would employ a class-exception system similar to the one in

use at common law.

Importantly, the advisory committee considered a

proposal by Judge Jack B. Weinstein, himself a member of the committee,

that would have done away with the class-exception system and instead left

the hearsay admissibility determination to the discretion of the trial judge,

who would weigh the hearsay’s probative force against its possibility of

prejudice in each case.

Rejecting that proposal, the committee remarked:

“For a judge to exclude evidence because he does not believe it has been

described as ‘altogether atypical, extraordinary.’”

The fact that the

advisory committee explicitly rejected judicial discretion when structuring

the hearsay admissibility rules will be important to consider in the context

of certain circuit court decisions, discussed in Part II, that reject exculpatory

grand jury testimony.

91. FED. R. EVID. art. VIII advisory committee’s note.

92. See id.; see also supra Part I.C.1.

93. See F

ED. R. EVID. art. VIII advisory committee’s note.

94. See id.; see also supra Part I.A. For the class-exception system employed in the

Federal Rules, see Federal Rule of Evidence 802 and the exceptions specified in Rules 803

and 804.

95. See F

ED. R. EVID. art. VIII advisory committee’s note (“The Advisory Committee

has rejected [Judge Jack B. Weinstein’s] approach to hearsay as involving too great a

measure of judicial discretion, minimizing the predictability of rulings, enhancing the

difficulties of preparation for trial, adding a further element to the already over-complicated

congeries of pretrial procedures, and requiring substantially different rules for civil and

criminal cases.”); see also Jack B. Weinstein, Probative Force of Hearsay, 46 I

OWA L. REV.

331, 338 (1961).

96. F

ED. R. EVID. art. VIII advisory committee’s note (quoting James H. Chadbourn,

Bentham and the Hearsay Rule—A Benthamic View of Rule 63(4)(c) of the Uniform Rules of

Evidence, 75 H

ARV. L. REV. 932, 947 (1962)).

97. See Randolph N. Jonakait, The Subversion of the Hearsay Rule: The Residual

Hearsay Exceptions, Circumstantial Guarantees of Trustworthiness, and Grand Jury

Testimony, 36 C

ASE W. RES. L. REV. 431, 435 (1986) (“Under the traditional framework, the

1228 FORDHAM LAW REVIEW [Vol. 79

b. Federal Rule of Evidence 804(b)(1)

The text of the current Rule 804(b)(1) reads:

(b) Hearsay Exceptions. The following are not excluded by the

hearsay rule if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony given as a witness at another

hearing of the same or a different proceeding, or in a deposition taken

in compliance with law in the course of the same or another

proceeding, if the party against whom the testimony is now offered,

or, in a civil action or proceeding, a predecessor in interest, had an

opportunity and similar motive to develop the testimony by direct,

cross, or redirect examination.

This language differs slightly from that originally drafted by the advisory

committee and sent to Congress for approval.

The original rule would

have admitted any “[t]estimony given as a witness [at a hearing or

deposition] at the instance of or against a party with an opportunity to

develop the testimony . . . with motive and interest similar to those of the

party against whom now offered.”

100

In other words, the rule as originally

promulgated by the Supreme Court would have admitted testimony against

any party in the present proceeding as long as some party at the prior

proceeding had a motive to develop the testimony similar to the motive of

the opposing party.

101

As such, the rule promulgated by the Supreme Court

mirrored the trend toward accuracy and admissibility—and away from strict

fairness to litigants—that had developed over time in the common law.

102

Not appreciating the general trend in evidence law and developments in the

hearsay exception for prior testimony, however, Congress responded with a

knee-jerk reaction that preserved liberal developments in terms of the

“issues” inquiry but favored fairness to litigants with respect to the “parties”

inquiry.

103

While the advisory committee would have admitted any

admission of hearsay is not left to the discretion of the trial court, even if the judge in a

particular case believes that the hearsay is necessary or reliable.”); id. at 436 n.24 (“The

Committee’s rejection indicates that the Federal Rules of Evidence were not intended to

authorize the admission of hearsay whenever the trial judge believed it or determined that the

probative value of the hearsay outweighed its prejudicial effect.”); see also infra notes 203,

210–12 and accompanying text.

98. F

ED. R. EVID. 804(b)(1).

99. See Weissenberger, supra note 23, at 312–13 & n.96.

100. Rules of Evidence for United States Courts & Magistrates, 56 F.R.D. 183, 321

(1973).

101. See Weissenberger, supra note 23, at 299.

102. See Robinson, supra note 90, at 904 (“The Advisory Committee drafted Rule

804(b)(1) in conformity with the Wigmorean view. . . . The House Committee on the

Judiciary amended the proposed rule to restore the requirement that the party opponent have

had a prior opportunity to question the witness. Thus, the House chose an adversarial

fairness model of litigation over a truth-seeking model, which would have emphasized

maximum availability of generally reliable, relevant evidence.” (footnotes omitted)); see also

supra Part I.C.1–2.

103. See Robinson, supra note 90, at 904; Weissenberger, supra note 23, at 312–15. The

legislative history of the rule reveals that Congress:

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1229

testimony as long as a party at the previous proceeding had a motive to

develop it similar to that of the opposing party at the present proceeding,

104

Congress required that the party against whom the evidence was admitted

be exactly the same in the criminal context and a “successor in interest” in

the civil context.

105

Importantly, however, Rule 804(b)(1)’s language—

both as promulgated by the Supreme Court and as amended by Congress—

ensures that prior testimony is not admitted against a party unless that

party’s interests were represented when the testimony was developed at the

previous proceeding.

106

Codified as such, the rule reflects liberal necessity

and accuracy concerns in treating the “issues” requirement,

107

and it reflects

concern for fairness to litigants in its “parties” requirement.

108

Absent from

the rule—both at common law and as enacted by Congress—is any

consideration of how the type of proceeding at which the prior testimony

was developed might bear, in the abstract, upon a party’s motive to examine

the witness.

109

D. Rule 804(b)(1) and Grand Jury Testimony

Rule 804(b)(1) asks courts to condition the admissibility of prior

testimony hearsay on a comparison of the opposing party’s “motive” to

examine the witness at the previous proceeding with that party’s

hypothetical “motive” to examine the witness at trial.

110

Courts have had

difficulty applying this test to grand jury testimony.

111

Not only did the

drafters of the rule provide no guidance, but grand jury proceedings have

[C]onsidered that it is generally unfair to impose upon the party against whom the

hearsay evidence is being offered responsibility for the manner in which the

witness was previously handled by another party. The sole exception to this . . . is

when a party’s predecessor in interest in a civil action or proceeding had an

opportunity and similar motive to examine the witness. The Committee amended

the Rule to reflect these policy determinations.

H.R.

REP. NO. 93-650, at 15 (1973), reprinted in 1974 U.S.C.C.A.N. 7075, 7088.

104. See Robinson, supra note 90, at 904.

105. Id. at 905 & n.71 (“The sole exception in 804(b)(1) to the same party requirement is

that a predecessor in interest will suffice in a civil action or proceeding.”).

106. See F

ED. R. EVID. 804(b)(1) advisory committee’s note (explaining that the crux of

admissibility has to do with whether the prior testimony was “develop[ed] fully” at the

previous proceeding); H.R.

REP. NO. 93-650, at 15 (1973), reprinted in 1974 U.S.C.C.A.N.

7075, 7088 (explaining that Rule 804(b)(1), as amended by the House Committee, concerns

whether the party opposing admission of prior testimony had an opportunity to handle the

testifying witness at the previous proceeding); Martin, supra note 4, at 552 (“The proposed

Rules have in effect retained the common-law minimum requirement that the former

testimony be given at a prior hearing in which cross-examination could have been compelled

or was in fact effected.”).

107. See Robinson, supra note 90, at 897–99; Weissenberger, supra note 23, at 312–16;

see also supra notes 101–05 and accompanying text.

108. See Robinson, supra note 90, at 905 & n.71; Weissenberger, supra note 23, at 313–

14 (explaining that the House revision of Rule 804(b)(1) reflected an intent that litigants in

civil matters should not be faced with prior testimony developed by any parties but

themselves or their close privies).

109. See supra notes 82–84 and accompanying text.

110. See F

ED. R. EVID. 804(b)(1); see also supra note 4 and accompanying text.

111. See supra note 5 and accompanying text.

1230 FORDHAM LAW REVIEW [Vol. 79

unique characteristics that make determining a prosecutor’s “motive” for

questioning especially difficult.

112

This section compares prosecutorial

examination of grand jury witnesses with defense examination of

preliminary hearing witnesses to demonstrate how strategic choices made

by attorneys in each situation have influenced courts’ “similar motive”

analyses and led to inconsistent admissibility results.

113

1. The Admissibility of Grand Jury Testimony Under Rule 804(b)(1)

Rule 804(b)(1) admits “[t]estimony given as a witness at another hearing

of the same or a different proceeding, or in a deposition taken in compliance

with law in the course of the same or another proceeding . . . .”

114

Despite a

lack of guidance from the common law or from the drafters of the Federal

Rule, it is now clear that this language pertains to grand jury testimony of

an unavailable witness.

115

The admissibility of grand jury testimony

pursuant to the hearsay exception for prior testimony remains controversial,

however.

116

112. See infra Part I.D.1–2.

113. See infra Part I.D.2.b.i.

114. F

ED. R. EVID. 804(b)(1).

115. See United States v. Omar, 104 F.3d 519, 523 (1st Cir. 1997) (noting that the

Supreme Court, in United States v. Salerno, 505 U.S. 317, 321 (1992), “all but held that Rule

804(b)(1) could embrace grand jury testimony”); 2 F

RANCIS WHARTON, WHARTON’S

CRIMINAL EVIDENCE §§ 470–92 (12th ed. 1955) (stating that grand jury testimony is

admissible under the hearsay exception for prior testimony but failing to discuss the subject

in any detail); Article, A Comparison and Analysis of the Federal Rules of Evidence and

New York Evidentiary Law (Rule 804(b)(1): Former Testimony), 12 T

OURO L. REV. 601,

602 (1996); see also infra Part I.D.2.b.

116. See, e.g., 2 M

CCORMICK, supra note 5, § 304, at 355–56 (explaining that “the

Circuits appear divided as to whether in typical grand jury situations exculpatory testimony

meets this [‘similar motive’] requirement of the Rule”); Valerie A. DePalma, Comment,

United States v. DiNapoli: Admission of Exculpatory Grand Jury Testimony Against the

Government Under Federal Rule of Evidence 804(b)(1), 61 B

ROOK. L. REV. 543, 572 &

nn.163–64 (1995) (listing sources that discuss the admission of grand jury testimony

pursuant to Rule 804(b)(1), primarily with respect to testimony offered against the

defendant).

Although it is beyond the scope of this Note, the primary problem with introducing grand

jury testimony against a defendant pursuant to Rule 804(b)(1) is that, because the grand jury

proceeding is ex parte, the defendant would not have had an “opportunity” to develop the

testimony. See F

ED. R. EVID. 804(b)(1); Weissenberger, supra note 35, at 1139. The Federal

Rules of Evidence aside, admitting grand jury testimony against the defendant is also

problematic under the Sixth Amendment’s Confrontation Clause, which assures to the

accused in criminal prosecutions the right “to be confronted with the witnesses against him.”

U.S.

CONST. amend. VI; see also FED. R. EVID. art. VIII advisory committee’s note;

Weissenberger, supra note 35, at 1139–40.

After the Supreme Court’s decision in United States v. Salerno, 505 U.S. 317 (1992), it

seems clear that Rule 804(b)(1) is the proper vehicle for the admission of grand jury

testimony against the government. See Omar, 104 F.3d at 523. The Salerno holding did not,

however, clarify how the rule’s “similar motive” test should be applied to grand jury

testimony or, specifically, what factors courts should consider to determine whether a

prosecutor had a “similar motive” to examine a grand jury witness. Cf. 505 U.S. at 324–25

(declining to address the issue and remanding to the U.S. Court of Appeals for the Second

Circuit for consideration of the meaning of “similar motive”).

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1231

In a number of cases, courts have admitted grand jury testimony against

the government under Rule 804(b)(1) without much discussion.

117

In other

cases, courts have held that the prosecution’s objective while examining a

grand jury witness is not sufficiently similar to its objective for cross-

examining the same witness at trial to justify admitting the grand jury

testimony.

118

Cross-examination is the key to the reliability of prior

testimony, so the very fact that the prosecution does not cross-examine

witnesses in grand jury proceedings would seem to suggest that grand jury

testimony should not be admissible against the government.

119

The

advisory committee addressed this problem in its note to Rule 804(b)(1),

however, and offered that the solution is “simply to recognize direct and

redirect examination of one’s own witness as the equivalent of cross-

examining an opponent’s witness.”

120

The central problem with admitting

grand jury testimony against the government stems not from whether

“cross-examination” was technically conducted at a grand jury proceeding,

but from Rule 804(b)(1)’s requirement that the party against whom the

testimony is offered must have had a “similar motive to develop the

testimony” at the previous proceeding.

121

The government’s position in a

number of cases where the defendant seeks to introduce grand jury

testimony from an unavailable witness is that the inherent characteristics of

grand jury proceedings preclude any possibility of finding a “similar

motive.”

122

Courts have had difficulty interpreting this elusive requirement

of the rule, leading to the split in the circuit courts which is the subject of

this Note.

123

2. Rule 804(b)(1)’s “Opportunity and Similar Motive” Requirement

a. Opportunity

As it appears in Rule 804(b)(1), the word “opportunity” refers not to any

chance that the opponent of prior testimony may have had to examine a

witness on a particular matter, but only to a “meaningful” chance that

117. See, e.g., United States v. Foster, 128 F.3d 949, 954–56 (6th Cir. 1997); United

States v. Miller, 904 F.2d 65, 68 (D.C. Cir. 1990).

118. See, e.g., Omar, 104 F.3d at 523–24; United States v. DiNapoli, 8 F.3d 909, 914–15

(2d Cir. 1993).

119. See F

ED. R. EVID. 804(b)(1) advisory committee’s note (explaining that Rule

804(b)(1) could seem unfair to apply “[i]f the party against whom [testimony is] now offered

is the one by whom the testimony was offered previously”); see also Ohio v. Roberts, 448

U.S. 56, 69–73 (1980) (explaining that cross-examination guarantees the reliability of prior

testimony), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36 (2004).

120. See F

ED. R. EVID. 804(b)(1) advisory committee’s note; see also Weissenberger,

supra note 35, at 1098–99.

121. See F

ED. R. EVID. 804(b)(1); 2 MCCORMICK, supra note 5, § 304, at 355.

122. See, e.g., Omar, 104 F.3d at 523; United States v. Salerno, 937 F.2d 797, 806 (2d

Cir. 1991) (“The government argued, and the district court agreed, that the government’s

motive in developing testimony in front of a grand jury is so different from the motive at

trial that the rule 804(b)(1) hearsay exception does not apply.”), rev’d, 505 U.S. 317 (1992).

123. See 2 M

CCORMICK, supra note 5, § 304, at 355 (explaining the circuit split and citing

cases).

1232 FORDHAM LAW REVIEW [Vol. 79

would have presented itself to a “reasonable attorney.”

124

Where it might

have been physically possible for a party to question a witness on a

particular matter but, for various reasons, no reasonable attorney would

have, the “opportunity” element of Rule 804(b)(1) is not satisfied.

125

Nevertheless, a party’s mere failure to question a witness on a relevant issue

does not necessarily bar admission of the prior testimony.

126

There are

plenty of situations in grand jury and other proceedings where, for strategic

reasons, examining parties intentionally forgo certain lines of

questioning.

127

In these situations, if the motive to examine the witness on

a particular issue existed but the examining party simply chose not to

conduct an examination, it would be unfair for the court to allow that

decision to bar the testimony’s admissibility if the witness later becomes

unavailable.

128

This concern for adversarial fairness is especially

significant in criminal cases, where the stakes are high.

129

Often, witnesses testify before the grand jury under a grant of immunity

from the government.

130

The prosecution may well be aware that the

witness is unlikely to testify at trial unless immunity is extended to the trial

proceeding;

131

yet, the government is under no obligation to grant immunity

at trial.

132

This puts the prosecution in a uniquely powerful position with

respect to developing—or declining to develop—exculpatory grand jury

124. See id. § 302, at 345–46 (“[T]he opportunity to cross-examine must have been such

as to render the cross-examination actually conducted or the decision not to cross-examine

meaningful in the light of the circumstances prevailing when the former testimony was

given.”); 5 W

IGMORE, supra note 44, § 1371; Martin, supra note 4, at 559 (“It is unfair to

hold a party to the former examination if no reasonable attorney would be expected to have

elicited the now-relevant facts . . . .”).

125. See, e.g., United States v. Franklin, 235 F. Supp. 338, 341 (D.D.C. 1964) (refusing to

admit prior testimony where the opposing party could have questioned the witnesses at the

prior proceeding but had no meaningful reason to do so because the parties were not then

adverse).

126. See 5 W

IGMORE, supra note 44, § 1371.

127. See, e.g., California v. Green, 399 U.S. 149, 195–97 (1970) (Brennan, J., dissenting)

(explaining that defense counsel may wish not to provide the prosecution with “gratis

discovery” by conducting a full cross-examination at a preliminary hearing); United States v.

DiNapoli, 8 F.3d 909, 913 (2d Cir. 1993) (explaining, inter alia, that when a grand jury

proceeding is conducted while an investigation is ongoing, the prosecution may wish to keep

impeachment evidence secret so as not to compromise the investigation).

128. See 2 M

CCORMICK, supra note 5, § 304, at 356 & n.14.

129. See, e.g., United States v. Salerno, 505 U.S. 317, 323–24 (1992) (explaining the

defendants’ argument that the exculpatory grand jury testimony at issue in the case should be

admitted against the government to stop the prosecution from using the following tactic: “If

a witness inculpates a defendant during the grand jury proceedings, the United States

immunizes him and calls him at trial; however, if the witness exculpates the defendant . . .

the United States refuses to immunize him and attempts to exclude the testimony as

hearsay.”); Weissenberger, supra note 35, at 1105 (noting that “grave consequences flow[]

from criminal convictions”).

130. See, e.g., 24 J

AMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 606.07[1]

(3d ed. 1997) (explaining that “the grand jury is entitled to every person’s testimony,” and

the prosecution may therefore immunize witnesses to overcome valid claims of the privilege

against self-incrimination); Capra, supra note 53.

131. See supra notes 129–30.

132. See Capra, supra note 53; see also supra note 53.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1233

testimony.

133

If the prosecution realizes that a grand jury witness is

providing testimony unfavorable to its case, it can cease questioning the

witness on that matter.

134

Later, at trial, after the government refuses to

grant the witness immunity and the witness becomes “unavailable,” the

prosecution can then claim that it had no motive to examine the witness on

the exculpatory matter and hence did not.

135

The importance of Rule

804(b)(1)’s “opportunity” requirement is to prevent the prosecution’s—or

any examiner’s—strategic decision to limit questioning from influencing

the admissibility inquiry where a court can determine that a motive to

question the witness nonetheless existed.

136

b. Similar Motive

In 1975, when Congress enacted Federal Rule of Evidence 804(b)(1),

there was little guidance for how to apply the rule’s “similar motive”

requirement, even though the language had been present in common law

commentary since at least 1899.

137

According to the advisory committee,

the requirement was based on the common law’s “identity of issues”

analysis: “Since identity of issues is significant only in that it bears on

motive and interest in developing fully the testimony of the witness,

expressing the matter in the latter terms is preferable.”

138

Treatises at the

time of the Federal Rules’ enactment did not contain very useful

descriptions of what made a motive to examine a witness’s testimony

sufficient to satisfy fairness and reliability requirements necessary for

admission at a later proceeding.

139

The advisory committee itself also

provided no criteria for interpreting the “similar motive” language of Rule

804(b)(1).

140

This was a useful tactic, in one sense, because the advisory

committee wished to create an admissibility standard more flexible than the

formalistic identity of parties and issues inquiry that had developed in the

133. See United States v. Salerno, 937 F.2d 797, 807 (2d Cir. 1991) (describing the

government’s powerful position with respect to the defendant in the conduct of grand jury

proceedings), rev’d, 505 U.S. 317 (1992).

134. See supra note 129.

135. See supra note 129.

136. See W

EINSTEIN & BERGER, supra note 2, ¶ 17.02[02], at 17-09 to -10 (“The rule is

grounded on the assumption that it is fair to make a party who had the opportunity and

motive to explore testimony at a prior proceeding bear the consequences of a failure to cross-

examine adequately or an election not to do so.” (emphasis added)); Weissenberger, supra

note 35, at 1097 (“Where the party forgoes cross-examination, it is not unfair to make him or

her suffer the consequences.”).

137. See Martin, supra note 4, at 557; see also supra note 78 and accompanying text.

138. See F

ED. R. EVID. 804(b)(1) advisory committee’s note.

139. See Martin, supra note 4, at 557–58 (“[A]lthough Wigmore first spoke in terms of

interest and motive over 70 years ago [as of 1972], even the latest edition of his treatise does

no more than indicate that in considering the admissibility of former testimony the issues

must be ‘substantially the same,’ and that property law should be a reference, though not

controlling, in determining whether the interests of the respective parties are sufficiently the

same.”).

140. Id. at 557.

1234 FORDHAM LAW REVIEW [Vol. 79

common law.

141

For purposes of interpreting how Rule 804(b)(1) should

apply to grand jury testimony offered against the government, however, the

advisory committee’s lack of guidance has been problematic.

142

As the

U.S. Court of Appeals for the Second Circuit noted in United States v.

DiNapoli, “the Advisory Committee discussed the offeror of testimony at

the prior proceeding in terms primarily applicable to trials and did not

discuss at all the situation where the prior proceeding was a grand jury.”

143

Adding to the difficulty of interpreting how the rule should apply is the

inconsistent case law governing two relatively similar situations: first,

where the government seeks to introduce prior preliminary hearing

testimony against defendants; and second, where defendants seek to

introduce prior grand jury testimony against the government.

144

i. Motive in the Preliminary Hearing and the Grand Jury

Many cases hold that the defendant’s opportunity and motive to cross-

examine a preliminary hearing witness’s testimony is sufficient to guarantee

the reliability of that testimony for admission at trial if the witness becomes

unavailable.

145

These decisions tend to focus on the form of the

preliminary hearing, which allows the defendant to cross-examine the

witness on the same issues that will be raised at trial.

146

Compared with

trial proceedings, however, preliminary hearings present an inherently

limited vehicle for the defendant to cross-examine inculpatory testimony.

147

141. See id. (“Undoubtedly, the Advisory Committee was concerned that it should not

bind trial court discretion by inelastic standards.”); see also supra Part I.C.2. Note that even

though the advisory committee did not want to bind judicial discretion with respect to the

meaning of “similar motive,” this is not the same thing as inviting the kind of broad judicial

discretion championed by Judge Weinstein, who advocated for courts to determine

admissibility based on case-by-case analysis of the hearsay’s probative versus prejudicial

value. See supra notes 95–96 and accompanying text.

142. See, e.g., United States v. Omar, 104 F.3d 519, 523 (1st Cir. 1997) (noting

“confusion on this issue [the application of Rule 804(b)(1) to grand jury testimony] in the

circuits”).

143. 8 F.3d 909, 913 n.4 (2d Cir. 1993) (en banc).

144. See 2 M

CCORMICK, supra note 5, § 304, at 354–55; see also Capra, supra note 53,

Michael Martin, Grand Jury Testimony Against the Government, N.Y.

L.J., Dec. 13, 1991,

at 3.

145. See 2 M

CCORMICK, supra note 5, § 304, at 354–55 (citing several supporting cases).

146. See Martin, supra note 144 (“The focus of the decisions is on the preliminary

hearing’s form, in which the accused nominally has an opportunity to cross-examine about

the same factual issues as are raised at trial.”). Grand jury proceedings, by comparison, are

not adversarial. See, e.g., United States v. Salerno, 937 F.2d 797, 807 (2d Cir. 1991), rev’d,

505 U.S. 317 (1992); see also infra note 218.

147. E.g., California v. Green, 399 U.S. 149, 197 (1970) (Brennan, J., dissenting)

(“Cross-examination at the [preliminary] hearing pales beside that which takes place at trial.

This is so for a number of reasons. First . . . the objective of the hearing is to establish the

presence or absence of probable cause, not guilt or innocence proved beyond a reasonable

doubt; thus, if evidence suffices to establish probable cause, defense counsel has little reason

at the preliminary hearing to show that it does not conclusively establish guilt . . . . Second,

neither defense nor prosecution is eager before trial to disclose its case by extensive

examination at the preliminary hearing; thorough questioning of a prosecution witness by

defense counsel may easily amount to a grant of gratis discovery to the State. Third, the

schedules of neither court nor counsel can easily accommodate lengthy preliminary hearings.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1235

The purpose of the preliminary hearing is to allow a magistrate judge to

determine whether there is probable cause at the time of the hearing “to

believe an offense has been committed and the defendant committed it.”

148

If the prosecution meets this burden, the magistrate judge requires the

defendant to appear for further proceedings.

149

The preliminary hearing is

adversarial, but the lower burden of proof that the prosecution must meet

(probable cause as opposed to “proof beyond a reasonable doubt” at trial)

often makes it “a foregone conclusion that the defendant will lose.”

150

As a

result, defendants often choose to forgo aggressive or complete cross-

examination so as to limit the prosecution’s ability to preview the defense

strategy or ascertain useful information, such as the defense’s impeachment

evidence.

151

In some cases, the preliminary hearing takes place early in the

course of an investigation and the defendant may not yet have developed

sufficient evidence with which to impeach the witness.

152

In other cases,

the magistrate judge may limit the scope of the defense’s cross-examination

to the issue of probable cause, narrowing the range of issues that can be

examined.

153

Although these factors taken together might suggest that a

defendant’s motive to examine a witness at a preliminary hearing is not

comparable with the motive at trial—or that a defendant is justified in

taking the strategic decision to limit cross-examination of a preliminary

hearing witness—courts have typically not allowed such considerations to

bar admission of preliminary hearing testimony where the similarity of the

issues alone suggested an opportunity to cross-examine.

154

Grand juries serve the dual function of protecting citizens from

unfounded prosecution by the government and of ensuring that probable

cause exists to show that a crime has been committed.

155

Indictment by a

Fourth, even were the judge and lawyers not concerned that the proceedings be brief, the

defense and prosecution have generally had inadequate time before the hearing to prepare for

extensive examination. Finally, though counsel were to engage in extensive questioning, a

part of its force would never reach the trial factfinder, who would know the examination

only second hand.”).

148. F

ED. R. CRIM. P. 5.1(e); see also WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE

§ 14.1(a), at 714 (4th ed. 2004); 24 M

OORE ET AL., supra note 130, § 605.1.03, at 605.1-5.

149. F

ED. R. CRIM. P. 5.1(e); 24 MOORE ET AL., supra note 130, § 605.1.13, at 605.1-11.

150. Capra, supra note 53; see also Green, 399 U.S. at 197 (Brennan, J., dissenting);

AFAVE ET AL., supra note 148, § 1.3(p), at 20–21.

151. See Green, 399 U.S. at 197 (Brennan, J., dissenting); see also supra note 147.

152. See Martin, supra note 144.

153. 24 M

OORE ET AL., supra note 130, § 605.1.11, at 605.1-10.

154. See L

AFAVE ET AL., supra note 148, § 14.1(d), at 719 (“The preliminary hearing

presents substantially the same issues as the trial . . . . Accordingly, the critical question [for

courts determining the admissibility of preliminary hearing testimony against the defendant]

becomes whether the opportunity for cross-examination was sufficient, which does not

require that it have been equal to the cross-examination opportunity at trial. Ordinarily, the

opportunity is deemed adequate unless the magistrate imposed some significant restriction

on the preliminary hearing cross-examination. . . . However, courts have suggested that

insufficiency may be established by showing that defense counsel at the preliminary hearing

lacked crucial information that would have altered the entire character of the cross-

examination.” (internal quotation marks omitted)); Capra, supra note 53; Martin, supra

note 144.

155. United States v. Calandra, 414 U.S. 338, 343 (1974).

1236 FORDHAM LAW REVIEW [Vol. 79

grand jury is constitutionally required before any person can be prosecuted

by the federal government for a felony.

156

As investigatory bodies, grand

juries have historically had wide latitude to inquire into possible criminal

activity and even to seek assurance that a crime is not being committed.

157

Although grand juries traditionally had a measure of independence from

other governmental bodies, today the expansive investigatory power of the

federal grand jury reposes in the executive branch—specifically, the

Department of Justice—which initiates and prepares all cases that come

before any federal grand jury.

158

In practical terms, this means that the

prosecutor has an exceptional amount of power in the grand jury

proceeding.

159

There are several reasons for this. First, grand jury

proceedings are ex parte, are conducted in secret, and are not presided over

by a judge.

160

Second, the prosecutor has discretion to determine the course

of the grand jury investigation, including which witnesses will be called and

the order in which they will appear.

161

Third, grand juries may require the

production of witness testimony through the use of subpoenas,

162

and the

prosecutor may overcome a witness’s invocation of the privilege against

self-incrimination by granting the witness immunity from prosecution and

thus compelling the witness to testify under threat of contempt.

163

Fourth,

grand jury proceedings are generally not restrained by the procedural and

evidentiary rules governing criminal trials.

164

Finally, commentators have

noted the “psychological pressure” that the “star chamber setting” of grand

jury interrogation imposes on witnesses, which increases the prosecution’s

power to overcome witness resistance and obtain information.

165

The

otherwise broad investigatory powers of the grand jury are limited,

156. U.S. CONST. amend. V (“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . .”); 24

OORE ET AL., supra note 130, § 606.02[1], at 606-11 to -13.

157. See Calandra, 414 U.S. at 343; 24 MOORE ET AL., supra note 130, § 606.02[1], at

606-11 (citing United States v. R. Enters., Inc., 498 U.S. 292, 297 (1991)).

158. See 24 M

OORE ET AL., supra note 130, § 606.02[1], at 606-13 (“[I]n modern times

the grand jury has lost much of its independent force. Composed of laypersons functioning

in a part-time capacity, the grand jury is no longer capable of taking the initiative in the

complex matters that often arise in federal criminal litigation.”).

159. See L

AFAVE ET AL., supra note 148, § 8.2(c), at 410 (“Today, the critics [of grand

jury practice] argue, the sweeping powers of the grand jury are exercised in reality by the

prosecutor alone.”); 24 M

OORE ET AL., supra note 130, § 606.02[1], at 606-13 to -14

(explaining the relative power of the prosecutor in the grand jury scheme).

160. Calandra, 414 U.S. at 343–44.

161. Id. at 343; L

AFAVE ET AL., supra note 148, § 8.2(c), at 410.

162. See 24 M

OORE ET AL., supra note 130, § 606.02[1], at 606-13 to -14, § 606.07[1], at

606-110 (“In general, the grand jury is entitled to every person’s testimony, and anyone

summoned to appear is required to do so.”).

163. L

AFAVE ET AL., supra note 148, § 8.2(c), at 411; 24 MOORE ET AL., supra note 130,

§ 606.07[1], at 606-110 to -111.

164. Calandra, 414 U.S. at 343.

165. See, e.g., L

AFAVE ET AL., supra note 148, § 8.3(d), at 413 (“[N]o person stands more

alone than a witness before a grand jury; in a secret hearing he faces an often hostile

prosecutor and 23 strangers with no judge present to guard his rights, no lawyer present to

counsel him and sometimes no indication of why he is being questioned.” (internal quotation

marks omitted)).

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1237

however, in that the prosecution may not utilize a grand jury for purposes of

discovery when it is not seeking an indictment.

166

The above characteristics of grand jury proceedings typically provide

little incentive for prosecutors to conduct aggressive or complete

examinations of potentially damaging grand jury witnesses.

167

Most

significant is the lower burden (probable cause) that the prosecutor must

meet to obtain an indictment than is required for a conviction at trial (“proof

beyond a reasonable doubt”).

168

A prosecutor who has met that burden is

unlikely to expend the resources necessary to fully examine a witness

whose testimony runs counter to the prosecution’s theory of the case.

169

Similarly, the prosecution will often desire to limit examination of grand

jury witnesses to conceal information or to maintain the secrecy of an

ongoing investigation.

170

Furthermore, when grand jury questioning takes

place early in an investigation, the prosecution may not yet possess the

information necessary to impeach a witness, and the issues examined may

not be the same as those that are later relevant at trial.

171

It should also be

noted that the prosecution is under no duty to concern itself with

exculpatory grand jury evidence.

172

Although the circumstances of grand jury proceedings may suggest that

the government has as little motive to develop exculpatory grand jury

testimony as the defendant has to challenge inculpatory preliminary hearing

testimony, courts generally have been more reluctant to admit grand jury

testimony against the government than to admit preliminary hearing

testimony against defendants.

173

The nonadversarial nature of grand jury

166. See United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991) (“Grand juries are not

licensed to engage in arbitrary fishing expeditions . . . .”); 24 M

OORE ET AL., supra note 130,

§ 606.05[2][c], at 606-57 to -58 (“It is not permissible for the prosecutor to subpoena and

question potential trial witnesses to an existing criminal proceeding when the sole or

dominant purpose of such questioning is to obtain evidence for use in the upcoming trial.

Simply stated, it is not a legitimate function of the grand jury to serve as a substitute for

pretrial discovery.” (footnote omitted)).

167. See Capra, supra note 53; see also Martin, supra note 144 (arguing that strategic

concerns diminish a prosecutor’s actual desire to conduct a thorough examination of grand

jury witnesses, and, therefore, “grand jury testimony probably should not be admissible

against the government under Rule 804(b)(1) because it almost never has the circumstantial

assurance of trustworthiness coming from a prosecutor’s motivation to develop it fully”).

168. See United States v. DiNapoli, 8 F.3d 909, 913 (2d Cir. 1993) (“[B]ecause of the low

burden of proof at the grand jury stage, even the prosecutor’s status as an ‘opponent’ of the

testimony does not necessarily create a motive to challenge the testimony that is similar to

the motive at trial.”); Martin, supra note 144; see also supra notes 150, 155 and

accompanying text.

169. See Martin, supra note 144.

170. Capra, supra note 53.

171. See id.

172. Id.

173. See 2 M

CCORMICK, supra note 5, § 304, at 354–55; see also Martin, supra note 144

(“[T]he same factors . . . pointed to as calling for exclusion of grand jury testimony offered

by the defense argue against admitting preliminary hearing testimony offered by the

prosecution. If ‘what is sauce for the goose is sauce for the gander,’ maybe the Salerno

court’s result is correct, after all.”). The “Salerno court” admitted grand jury testimony

against the government on a theory of adversarial fairness alone. See United States v.

Salerno, 937 F.2d 797, 806 (2d Cir. 1991), rev’d, 505 U.S. 317 (1992).

1238 FORDHAM LAW REVIEW [Vol. 79

proceedings could be one reason for the differing admissibility

determinations.

174

Policy considerations, such as an interest in supporting

the investigative activities of law enforcement, may also drive this result.

175

One commentator has suggested what could be another possible

justification for differing admissibility holdings concerning preliminary

hearing and grand jury testimony.

176

If certain Supreme Court decisions

upholding the admissibility of preliminary hearing testimony against

defendants can be said to create a motive for the defense to fully develop

preliminary hearing testimony,

177

then a lack of Supreme Court precedent

affirming the admission of grand jury testimony against the government

178

might be said to have the opposite effect, providing more support for the

argument that the government has little motive to fully examine exculpatory

grand jury witnesses.

179

ii. Other Motive Considerations

Courts and commentators have supplied additional content to the

meaning of Rule 804(b)(1)’s “similar motive” test since its codification in

the Federal Rules of Evidence. In his concurring opinion in United States v.

Salerno, Justice Harold Blackmun argued that “‘similar motive’ does not

mean ‘identical motive,’” and the admissibility inquiry is therefore

174. Cf. supra note 146 and accompanying text.

175. See, e.g., United States v. Salerno, 952 F.2d 624, 625 (2d Cir. 1991) (Newman, J.,

dissenting) (“The panel’s ruling [admitting grand jury testimony against the government]

also creates serious problems for the Government in the development of evidence at the

grand jury. If the Government calls to the grand jury witnesses other than those who are

certain to give testimony helpful to the prosecution (and the Government will frequently

prefer to call witnesses of this sort, both to investigate undeveloped matters and to freeze a

hostile or wavering witness’s testimony), it must then accept admission of their hearsay at

trial if offered by the defense, or severely limit its opportunity to prosecute them by

conferring use immunity.” (citing United States v. North, 910 F.2d 843, 853–73 (D.C. Cir.

1990))); 2 S

TEPHEN A. SALTZBURG & MICHAEL M. MARTIN, FEDERAL RULES OF EVIDENCE

MANUAL 410 (5th ed. 1990) (“[R]uling that the government is deemed to have an adequate

opportunity to examine witnesses before a grand jury for purposes of Rule 804(b)(1) would

require that the government treat the grand jury investigation in every case as if it were a

trial. This would greatly extend the proceedings and complicate them more than is

necessary. Arguably, it would be good policy for the government to call all witnesses before

grand juries and to develop all testimony fully for the benefit of the defense and the

prosecution. But this is not the grand jury system as it now exists for federal

prosecutions . . . .”).

176. See Martin, supra note 4, at 562 n.75.

177. See id. (remarking that decisions such as California v. Green, 399 U.S. 149, 165–66

(1970), and Pointer v. Texas, 380 U.S. 400, 407 (1965), “which indicate that there is at least

no confrontation clause violation when testimony given at a ‘full-fledged’ preliminary

hearing is offered at trial . . . may by themselves provide a motive and interest in full

development of the [preliminary hearing] testimony” by the defendant).

178. Only United States v. Salerno, 505 U.S. 317, 321 (1992), holds that grand jury

testimony may be admitted against the government as prior testimony hearsay pursuant to

Rule 804(b)(1), and it does so by implication. See United States v. Omar, 104 F.3d 519, 523

(1st Cir. 1997) (noting that, in Salerno, 505 U.S. at 321, “the Supreme Court all but held that

Rule 804(b)(1) could embrace grand jury testimony”).

179. For reasons why the government lacks motive to develop exculpatory grand jury

testimony, see supra notes 160–72 and accompanying text.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1239

inherently “factual,” with its outcome depending on analysis of the specific

circumstances surrounding the grand jury questioning in each case.

180

Similarly, commentators have argued that the inquiry is concerned

primarily with comparing a reasonable attorney’s motive to develop facts at

the previous proceeding with the attorney’s hypothetical motive to develop

those facts at trial.

181

The majority in Salerno confirmed that Rule

804(b)(1) must be interpreted according to its plain language and not by

reference to expansive policy considerations.

182

In situations where

information that would have been useful for examining a witness at a prior

proceeding first surfaces subsequent to that proceeding, this alone is not

enough to render the prior testimony inadmissible where the existing

motive for examination was satisfactory in light of the circumstances

prevailing at the second proceeding.

183

Furthermore, Federal Rule of

Evidence 806 allows for impeachment of prior testimony hearsay in the

same manner as if the witness were available at trial, so an opposing party

is not without the ability to bring newly developed evidence to bear on

discrediting prior testimony.

184

Where courts have found that the issues at

180. See Salerno, 505 U.S. at 326 (Blackmun, J., concurring) (“Moreover . . . the similar-

motive inquiry appropriately reflects narrow concerns of ensuring the reliability of evidence

admitted at trial—not broad policy concerns favoring either the Government in the conduct

of grand jury proceedings or the defendant in overcoming the refusal of other witnesses to

testify.”); see also Feaster v. United States, 631 A.2d 400, 404, 406 (D.C. 1993) (admitting

exculpatory grand jury testimony and explaining that because the prosecution focused its

inquiry on the defendant’s guilt at both proceedings it did not matter that the prosecutor did

not assume as “adversarial, inquiring, searching, and explicative” of an approach as the

prosecution at trial might have wished for (internal quotation marks omitted)).

181. See Weissenberger, supra note 35, at 1101–02 (“The Rule seeks to achieve fairness

by imposing factual testimony on a party only where the party . . . had a motive to develop

or, alternatively, to limit the weight of the testimony at the former proceeding. Accordingly,

the similar motive requirement should be read to mean ‘motive to develop facts’ or ‘motive

to limit the weight to be accorded the prior testimony.’” (footnote omitted)); see also Martin,

supra note 4, at 558–59 (“Since the opponent’s argument against admission of former

testimony is that he is deprived of the opportunity to bring out relevant facts, the objective of

the motive and interest test is to determine whether there is any significant reason why facts

relevant to the present inquiry . . . would not have been elicited at the prior hearing. A

‘significant reason’ for these purposes would be one which would affect the conduct of the

examination by a reasonable attorney in the same circumstances. It is unfair to hold a party

to the former examination if no reasonable attorney would be expected to have elicited the

now-relevant facts; but if the circumstances were such that those facts could have been

brought out if they were available, the present opponent can fairly be held.”).

182. See Salerno, 505 U.S. at 321 (rejecting the defendants’ argument that Rule 804(b)(1)

should not be applied in a “slavishly literal fashion” and holding that a court may not admit

prior testimony under the rule “absent satisfaction of each of the Rule’s elements” (internal

quotation marks omitted)); see also United States v. Salerno, 974 F.2d 231, 238 (2d Cir.

1992) (“The Supreme Court has made clear in recent years that the Federal Rules of

Evidence . . . are to be read with regard to their ‘plain meaning.’” (citing Bourjaily v. United

States, 483 U.S. 171, 178–79 (1987)), vacated en banc sub nom. United States v. DiNapoli,

8 F.3d 909 (2d Cir. 1993); Capra, supra note 53 (discussing the Supreme Court’s application

of the plain meaning rule).

183. See, e.g., United States v. Koon, 34 F.3d 1416, 1427 (9th Cir. 1994).

184. According to Rule 806, “[w]hen a hearsay statement . . . has been admitted in

evidence, the credibility of the declarant may be attacked, and if attacked may be supported,

by any evidence which would be admissible for those purposes if declarant had testified as a

witness.” F

ED. R. EVID. 806. See also Capra, supra note 53 (explaining that the Second

1240 FORDHAM LAW REVIEW [Vol. 79

the two proceedings are sufficiently different, such that “questions on a

particular subject would have been largely irrelevant at the earlier

proceeding,” the prior proceeding’s testimony has generally been held

inadmissible.

185

Ultimately, the “similar motive” inquiry requires that “the issues in the

first proceeding, and hence the purpose for which the testimony was

offered, must have been such [that the present opponent had] an adequate

motive for testing on cross-examination the credibility of the testimony.”

186

The rule ensures fairness to litigants by preventing the imposition of a prior

proceeding’s factual testimony on a party unless that party “had a motive to

develop or, alternatively, to limit the weight of the testimony at the former

proceeding.”

187

The rule is not only concerned with fairness, however; the

advisory committee’s adoption of Dean Wigmore’s “interests and motives”

formulation demonstrates that the rule is also meant to serve necessity

concerns by providing the fact-finder with as much information as possible

under a less restrictive admissibility framework than common law courts

employed.

188

The next part of this Note examines recent U.S. Courts of Appeals cases

where Rule 804(b)(1)’s “similar motive” test was used to admit or deny

grand jury testimony offered against the government. The issues detailed

above concerning the meaning of “similar motive” will be discussed in the

context of the influence they had on the courts’ decisions, and those

decisions themselves will be analyzed for the purpose of devising a uniform

“similar motive” admissibility test for grand jury testimony offered against

the government.

II.

CASES APPLYING RULE 804(b)(1)’S “SIMILAR MOTIVE” TEST TO

GRAND JURY TESTIMONY OFFERED AGAINST THE GOVERNMENT

A split has developed in the circuit courts over the proper interpretation

of Rule 804(b)(1)’s “similar motive” language in the context of admitting

grand jury testimony against the government.

189

The Second and First

Circuits have construed the requirement narrowly and issued decisions

suggesting that exculpatory grand jury testimony would rarely be

Circuit panel in United States v. Salerno, 937 F.2d 797, 806–08 (2d Cir. 1991), rev’d, 505

U.S. 317 (1992), admitted prior testimony against the government partly on fairness grounds,

based on the fact that the government would never have lost the ability to impeach the

unavailable witness’s testimony under Rule 806).

185. See 2 M

CCORMICK, supra note 5, § 302, at 346 (citing United States v. Wingate, 520

F.2d 309, 315–16 (2d Cir. 1975) (holding that testimony from a hearing on a motion to

suppress due to involuntariness is not admissible at trial where the innocence of the

defendant is at issue)); see also Weissenberger, supra note 35, at 1102 (“The critical issue

raised by Rule 804(b)(1) is whether to admit the evidence or completely sacrifice the

testimony of the [declarant]; consequently, only genuinely dissimilar motives should result

in exclusion.”).

186. See 2 M

CCORMICK, supra note 5, § 304, at 354.

187. Weissenberger, supra note 35, at 1101–02.

188. See supra Part I.C.1–2.

189. See 2 M

CCORMICK, supra note 5, § 304, at 355.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1241

admissible against the government.

190

The District of Columbia, Sixth, and

Ninth Circuits, by contrast, have compared the government’s motives “at a

high level of generality”

191

and have issued decisions suggesting that

exculpatory grand jury testimony is almost always admissible against the

government.

192

This section will analyze the facts of each case, each

court’s specific interpretation of Rule 804(b)(1), and other factors—such as

policy considerations and judicial discretion—that led to the divergent

holdings.

A. The Second and First Circuits’ Narrow Admissibility Decisions

In the two cases that follow, the courts wrestled with how to determine

whether exculpatory testimony should be admitted against the government

under Rule 804(b)(1). Both courts ultimately excluded the testimony,

reasoning, inter alia, that the nature of the grand jury proceeding itself

generally precludes a finding of “similar motive.”

193

1. The Second Circuit: United States v. DiNapoli

a. Facts and Procedural History

On April 7, 1987, a grand jury sitting in the Southern District of New

York returned a thirty-five–count third superseding indictment against

eleven defendants, including Anthony Salerno and Vincent DiNapoli, for

alleged RICO violations related to mafia activity.

194

The trial lasted

thirteen months and focused primarily on the government’s attempts to

prove that the defendants were involved in a scheme to rig bids for concrete

construction work in Manhattan.

195

By controlling labor unions and the

supply of concrete, the Genovese organization was able to ensure that all

large concrete projects were allocated among a select group of contractors,

called the “Club,” who then paid a fee to the defendants.

196

Pursuant to its

obligation under Brady v. Maryland,

197

the prosecution informed the

defendants that two witnesses, Pasquale J. Bruno and Frederick DeMatteis,

had testified before the grand jury under a grant of immunity and provided

“potentially exculpatory evidence.”

198

These two witnesses were principals

in the Cedar Park Concrete Construction Corporation, alleged to belong to

190. See United States v. Omar, 104 F.3d 519, 523 (1st Cir. 1997); United States v.

DiNapoli, 8 F.3d 909, 914–15 (2d Cir. 1993).

191. See United States v. McFall, 558 F.3d 951, 962 (9th Cir. 2009).

192. See id. at 963; United States v. Foster, 128 F.3d 949, 955–56 (6th Cir. 1997); United

States v. Miller, 904 F.2d 65, 68 (D.C. Cir. 1990).

193. See Omar, 104 F.3d at 523; DiNapoli, 8 F.3d at 914–15.

194. United States v. Salerno, 937 F.2d 797, 800–01 (2d Cir. 1991) [hereinafter Salerno

I], rev’d, 505 U.S. 317 (1992).

195. Id. at 801–02.

196. Id. at 802.

197. 373 U.S. 83, 87 (1963) (holding that prosecutors violate due process when they fail

to turn over exculpatory evidence to defendants upon request).

198. Salerno I, 937 F.2d at 804.

1242 FORDHAM LAW REVIEW [Vol. 79

the “Club,” yet the two men testified that no such “Club” existed.

199

counter their testimony, the prosecution confronted them with a wiretapped

conversation—which had been made public at a previous trial—implicating

the witnesses’ company in the bid-rigging scheme.

200

Referring to its grand

jury examination, the prosecution later claimed that “[w]e did not cross-

examine Bruno and did not tip our cards, and the same thing was true with

respect to DeMatteis.”

201

Before the grand jury, Bruno and DeMatteis each gave contradictory

testimony.

202

At one point, Bruno was excused from the grand jury room

and told, upon his return, that the grand jurors strongly doubted the

truthfulness of his testimony.

203

Four days after Bruno testified, his lawyer

informed the prosecutor that Bruno’s testimony may have been false.

204

suggested that Bruno would submit new answers by affidavit if the

prosecution would agree to furnish the questions in writing, but the

prosecution declined to do so.

205

At their trial, the defendants subpoenaed Bruno and DeMatteis to testify,

but the witnesses invoked their Fifth Amendment privilege against self-

incrimination.

206

The defendants then requested that the government grant

the witnesses immunity.

207

When the government declined, the defendants

moved to introduce Bruno and DeMatteis’s grand jury testimony pursuant

to Rule 804(b)(1).

208

To maintain the secrecy of the grand jury transcripts,

the district judge conferred ex parte with the prosecution regarding the

defendants’ motion.

209

The prosecution explained that it had little motive

to develop the testimony of witnesses who were known to be lying.

210

also argued, in general terms, that prosecutorial motive for investigating

witnesses in the grand jury is so different from motive at trial that Rule

804(b)(1) should not apply.

211

The district court agreed and denied the

defendants’ motion.

212

199. Id. at 804, 808.

200. United States v. DiNapoli, 8 F.3d 909, 911 (2d Cir. 1993).

201. United States v. Salerno, 974 F.2d 231, 237 (2d Cir. 1992) [hereinafter Salerno II]

(alteration in original) (internal quotation marks omitted), vacated en banc sub nom. United

States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993).

202. See DiNapoli, 8 F.3d at 911 n.1.

203. Id. at 911.

204. Id.

205. Id.

206. Id.; see also U.S.

CONST. amend. V (“No person . . . shall be compelled in any

criminal case to be a witness against himself . . . .”).

207. Salerno I, 937 F.2d 797, 804 (2d Cir. 1991), rev’d, 505 U.S. 317 (1992).

208. Id.

209. Salerno II, 974 F.2d 231, 236 (2d Cir. 1992), vacated en banc sub nom. United

States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993).

210. Salerno I, 937 F.2d at 806 (explaining that the prosecution had submitted sealed

affidavits arguing that it has “little or no incentive to conduct a thorough cross-examination

of Grand Jury witnesses who appear to be falsifying their testimony” (internal quotation

marks omitted)).

211. Id.

212. Id. (“The government argued, and the district court agreed, that the government’s

motive in developing testimony in front of a grand jury is so different from the motive at

trial that the Rule 804(b)(1) hearsay exception does not apply.”).

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1243

After their conviction, the defendants appealed.

213

A panel of the Second

Circuit held that the district court had improperly denied admission of the

grand jury testimony.

214

Because the witnesses could have been made

available through a grant of immunity, the court reasoned, Bruno and

DeMatteis were only “unavailable” to the defendants.

215

Therefore, the

same bar that stops a party from procuring a witness’s unavailability so as

to admit prior testimony

216

should also prohibit the government from

invoking Rule 804(b)(1)’s “similar motive” test to block the admission of

prior testimony where the government’s refusal to grant immunity

effectively kept the witnesses from the courtroom.

217

In the court’s

reasoning, concern for fairness to the defendants and the prevention of

governmental overreaching counseled in favor of admissibility,

218

regardless of whether the explicit requirements of the “similar motive” test

were met.

219

The court also reasoned that grand jury proceedings are by

their nature adverse to defendants, so the admission of grand jury testimony

against the government does not raise the kind of reliability concerns that

are present when, for instance, grand jury testimony is offered against the

defendant.

220

Finally, the court reasoned that the government had violated

the spirit of Brady v. Maryland

221

by informing the defendants that the

witnesses had provided testimony favorable to them and then trying to

exclude that testimony at trial.

222

213. Id. at 803.

214. Id. at 808.

215. Id. at 806 (“Had Bruno and DeMatteis been, for example, ill or dead at the time of

trial (and therefore, under rule 804(a)(4), ‘unavailable’ to either side), the district court

would have properly inquired whether the government had a ‘similar motive’ to examine

them in the grand jury before allowing their testimony before the grand jury to be admitted

under rule 804(b)(1), because neither the government nor the defendant would be able to

examine the witness at trial. But since these witnesses were available to the government at

trial through a grant of immunity, the government’s motive in examining the witnesses at the

grand jury was irrelevant.”).

216. See supra note 51 and accompanying text.

217. See Salerno I, 937 F.2d at 806–07. Note that the government is not required to grant

immunity to a witness who has invoked the privilege against self-incrimination. Id. at 807;

see also Capra, supra note 53.

218. See Salerno I, 937 F.2d at 807 (“[W]hen the defendant wishes to introduce the grand

jury testimony that the government used to obtain his indictment, . . . concerns about

reliability and accuracy are absent. Every factor present in the grand jury—the ex parte

nature of the proceeding, the leading questions by the government, the absence of the

defendant, the tendency of a witness to favor the government because of the grant of

immunity, the absence of confrontation—is adverse to the interest of the defendants, not the

government. . . . Since the witnesses were only unilaterally ‘unavailable’ and could have

been subjected to cross-examination by the government, we will not countenance the

exclusion of their grand jury testimony on the ground of purported fairness to the

government.”); see also infra text accompanying notes 221–22.

219. See Salerno I, 937 F.2d at 806 (“While we agree that the government may have had

no motive before the grand jury to impeach the allegedly false testimony of Bruno and

DeMatteis, we do not think that is sufficient to exclude the evidence at trial.”).

220. Id. at 807; see also supra notes 116, 218.

221. 373 U.S. 83 (1963); see also supra note 197.

222. Salerno I, 937 F.2d at 807.

1244 FORDHAM LAW REVIEW [Vol. 79

b. The Supreme Court Decision in United States v. Salerno

After the Second Circuit denied the government’s petition for a rehearing

en banc,

223

the government appealed to the Supreme Court, which reversed

the panel’s decision.

224

The Court held that prior testimony is not

admissible pursuant to Rule 804(b)(1) unless the “similar motive” test is

satisfied; adversarial fairness alone is not grounds for admitting prior

testimony under the rule.

225

The Court declined to decide whether the

government had a “similar motive” to question Bruno and DeMatteis before

the grand jury, however, and remanded for further consideration of the

government’s “motive” in light of the evidentiary standard prescribed by

the Court.

226

In his concurrence, Justice Blackmun disagreed with the district court’s

suggestion that prosecutorial motive to examine witnesses before the grand

jury is never sufficiently similar to its motive at trial.

227

He argued:

Because “similar motive” does not mean “identical motive,” the similar-

motive inquiry, in my view, is inherently a factual inquiry, depending in

part on the similarity of the underlying issues and on the context of the

grand jury questioning. It cannot be that the prosecution either always or

never has a similar motive for questioning a particular witness with

respect to a particular issue before the grand jury as at trial.

228

Furthermore, Justice Blackmun argued, the similar motive inquiry should

not reflect policy favoring either the government or the defendant; it should

focus solely on the reliability of the testimony in evidentiary terms.

229

Dissenting, Justice John Paul Stevens argued that the government did

have a similar motive and opportunity to examine Bruno and DeMatteis

before the grand jury because the witnesses’ testimony was inconsistent

with the prosecution’s theory of the case.

230

According to Justice Stevens,

although the government argued lack of motive in the abstract, the

transcript revealed otherwise.

231

By probing the basis of the witnesses’

statements regarding the existence of the “Club” and introducing wiretap

evidence to contradict them, the prosecution demonstrated that it possessed

223. United States v. Salerno, 952 F.2d 624, 624 (2d Cir. 1991). Judge Jon O. Newman,

who would later write the DiNapoli opinion, dissented from the denial. Id. Among his

arguments was that the Second Circuit’s holding would frustrate the government’s

development of grand jury testimony. Id. at 625–26; see also supra note 175.

224. United States v. Salerno, 505 U.S. 317, 325 (1992).

225. See id. at 321; Article, supra note 115, at 601.

226. Salerno, 505 U.S. at 325 (“The Court of Appeals, as noted, erroneously concluded

that the respondents did not have to demonstrate a similar motive in this case to make use of

Rule 804(b)(1). It therefore declined to consider fully the arguments now presented by the

parties about whether the United States had such a motive.”).

227. See id. at 325–26 (Blackmun, J., concurring).

228. Id. at 326.

229. See id.

230. Id. at 326–29 (Stevens, J., dissenting) (“[A] party has a motive to cross-examine any

witness who, in her estimation, is giving false or inaccurate testimony about a fact that is

material to the legal question at issue in the proceeding.”).

231. See id. at 327–28, 331–32.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1245

a motive to examine the witnesses’ grand jury testimony on the issues

relevant at trial.

232

Justice Stevens also argued that strategic considerations

should not influence the “similar motive” inquiry:

[A] party might decide—for tactical reasons or otherwise—not to engage

in a rigorous cross-examination, or even in any cross-examination at all.

In such a case, however, I do not believe that it is accurate to say that the

party lacked a similar motive to cross-examine the witness; instead, it is

more accurate to say that the party had a similar motive to cross-examine

the witness . . . but chose not to act on that motive.”

233

Thus, for Justice Stevens, there is a distinction between the reasons a

prosecutor might want to limit questioning at the grand jury and the bare

“motive” the prosecutor would otherwise have to question the witness; and

the reasons for limiting questioning should not intrude on the “motive”

analysis.

234

c. The Second Circuit Panel Decision on Remand

On remand from the Supreme Court, a panel of the Second Circuit held

that the prosecution had a similar motive to examine the witnesses before

the grand jury, and, therefore, the district court should have admitted Bruno

and DeMatteis’s testimony.

235

The court explained that the “similar

motive” test does not require finding an “identical” motive; it stressed that

“similar motive” exists where “the issues in the two proceedings [are]

sufficiently similar to assure that the opposing party had a meaningful

opportunity to cross-examine when the testimony was first offered.”

236

Despite the government’s argument in the abstract that grand jury

proceedings do not support finding a “similar motive” to develop testimony,

the court held that the transcript of the grand jury questioning demonstrated

a prosecutorial attempt to discredit the witnesses’ testimony within the

meaning of the “similar motive” test.

237

The court also described what may

be thought of as a two-part test to determine whether a prosecutor

demonstrates “similar motive” to examine a grand jury witness.

238

First, a

232. See id. at 326–28, 332.

233. See id. at 329 (emphasis added and footnote omitted).

234. See id. at 329–30 (“[N]either the fact that the prosecutors might decline to cross-

examine a grand jury witness whom they fear will talk to the target of the investigation nor

the fact that they might choose to undermine the witness’ credibility other than through

rigorous cross-examination alters the fact that they had an opportunity and similar motive to

challenge the allegedly false testimony through questioning before the grand jury. Although

those might be reasons for declining to take advantage of the opportunity to cross-examine a

witness, neither undermines the principal motive for engaging in cross-examination, i.e., to

shake the witness’ allegedly false or misleading testimony.”). But see Capra, supra note 53

(arguing that Justice John Paul Stevens’s refusal to include strategic concerns in the “similar

motive” analysis is too “harsh” an application of the rule).

235. Salerno II, 974 F.2d 231, 232 (2d Cir. 1992), vacated en banc sub nom. United

States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993).

236. See id. at 238 (quoting United States v. Wingate, 520 F.2d 309, 316 (2d Cir. 1975)

(internal quotation marks omitted)).

237. See id. at 240–41.

238. See id. at 239.

1246 FORDHAM LAW REVIEW [Vol. 79

court should look to the examination that was “in fact” conducted to

determine if it is equivalent to the examination the prosecution would wish

to conduct at trial.

239

If the results are inconclusive, the court should

determine, objectively, whether a “reasonable examiner under the

circumstances” would have had a similar motive to develop the witness’s

testimony.

240

According to the court, “[t]his latter inquiry ensures that the

failure to vigorously examine the witness—for tactical reasons or

otherwise—does not insulate the prior testimony from admission.”

241

This

language suggests that, under the court’s test, a prosecutor’s strategic

decision to forgo examination on a particular issue might not factor into the

“similar motive” analysis.

242

But, because the panel concluded that the

grand jury transcript demonstrated a “similar motive,” the panel did not

clearly apply its “reasonable examiner” test to the facts in this case.

243

d. The Rehearing en Banc Decision: United States v. DiNapoli

Again the government petitioned for a rehearing en banc, and this time it

was granted.

244

The Second Circuit, sitting en banc, vacated the panel’s

decision and held that Bruno and DeMatteis’s grand jury testimony was not

admissible.

245

The court reasoned that, because the “similar motive”

inquiry is inherently factual, it is possible for the government to have a

motive at the grand jury that is equivalent to its motive at trial.

246

But, in

this case, the government’s interest in discrediting the witnesses’ testimony

was substantially less “intense” than it would have been at trial.

247

The

239. Id.

240. Id.

241. Id.

242. See id.

243. See id. at 240–41 (“Nevertheless . . . the court need not turn to abstract notions of

“motive” if what the examiner actually did in the prior proceeding was “similar” to what the

examination would be in the current one.”); see also Judith M. Mercier, Student Topic,

United States v. Salerno: An Examination of Rule 804(b)(1), 48 U.

MIAMI L. REV. 323, 336–

40 (1993) (arguing that the panel’s “reasonable examiner” test is the correct one for

admissibility of grand jury testimony under Rule 804(b)(1) but implying that the panel meant

to include, rather than exclude, strategic considerations as a factor bearing on “motive”).

244. See United States v. DiNapoli, 8 F.3d 909, 910 (2d Cir. 1993) (en banc). Anthony

Salerno, one of the defendants from the earlier proceedings, died during the pendency of the

appeal, and the Second Circuit issued its en banc decision under case name United States v.

DiNapoli. Id. at 911 n.2.

245. Id. at 910, 915.

246. See id. at 913–14 (“[W]e do not accept the position, urged by the Government upon

the Supreme Court, that a prosecutor generally will not have the same motive to develop

testimony in grand jury proceedings as he does at trial. Though the Supreme Court declined

to assess that contention . . . we discern in its opinion a reluctance to engraft any general

exception onto Rule 804(b)(1).” (citation omitted) (internal quotation marks omitted)).

Compare this reasoning with the district court’s earlier conclusion that grand jury

proceedings, by their nature, preclude a finding of “similar motive.” See supra notes 210–12,

227–28 and accompanying text.

247. See DiNapoli, 8 F.3d at 914–15 (“[T]he inquiry as to similar motive must be fact

specific, and the grand jury context will sometimes, but not invariably, present

circumstances that demonstrate the prosecutor’s lack of a similar motive. We accept neither

the Government’s view that the prosecutor’s motives at the grand jury and at trial are almost

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1247

court explained: “The test must turn not only on whether the questioner is

on the same side of the same issue at both proceedings, but also on whether

the questioner had . . . a substantially similar degree of interest in prevailing

on that issue.”

248

The court read Rule 804(b)(1)’s “similar motive”

language as requiring nearly equivalent stakes at both proceedings.

249

The court also noted that “[t]he nature of the two proceedings,” including

“what is at stake and the applicable burden of proof,” as well as the

examination at the prior proceeding, “both what was undertaken and what

was available but forgone,” should factor into the analysis.

250

Where two

proceedings are different in their purposes or burden of proof, a party’s

motives for questioning a witness could differ, even though that party is on

the same “side” at both proceedings.

251

Motive depends upon many things,

including the stage of the investigation at the time the witness is examined

and what the prosecution desires to use the witness’s testimony for at that

stage of its investigation.

252

Applying the above principles to this case, the court concluded that there

were two overriding reasons why the government lacked a similar motive to

examine Bruno and DeMatteis before the grand jury: (1) the defendants

were already indicted, so the prosecution had no need to undermine

testimony that exculpated them; and (2) the prosecution had no interest in

proving the witnesses’ testimony false because the grand jurors themselves

had informed the prosecution that they did not believe Bruno’s

testimony.

253

The court also noted that the prosecution limited its

questioning to matters that were already publicly disclosed so as not to

reveal information that remained secret at that stage of the investigation.

254

Judge George C. Pratt, who wrote the panel’s decision on remand from

the Supreme Court, dissented.

255

He believed that the en banc majority

erred by rewriting the “similar motive” test into a “same motive” test.

256

The majority’s admissibility requirement, he argued, was stricter than the

one for which the Federal Rules of Evidence called.

257

Judge Pratt also

criticized the majority for accepting at face value the government’s own

always dissimilar, nor the opposing view, apparently held by the District of Columbia

Circuit, that the prosecutor’s motives in both proceedings are always similar. . . . The proper

approach . . . in assessing similarity of motive under Rule 804(b)(1) must consider whether

the party resisting the offered testimony at a pending proceeding had at a prior proceeding an

interest of substantially similar intensity to prove (or disprove) the same side of a

substantially similar issue.”).

248. Id. at 912 (emphasis added).

249. See id. at 914–15; see also supra note 247.

250. DiNapoli, 8 F.3d at 915.

251. See id. at 912–15.

252. See id. at 913.

253. See id. at 915. Note that the prosecutor’s belief that questioning was unnecessary

because the jurors disbelieved the testimony is dubious because “[t]he grand jurors had not

informed the prosecutor that they found Bruno’s testimony incredible until after Bruno had

testified.” See DePalma, supra note 116, at 588.

254. See DiNapoli, 8 F.3d at 915.

255. Id. (Pratt, J., dissenting); see also supra Part II.A.1.c.

256. DiNapoli, 8 F.3d at 916 (Pratt, J., dissenting).

257. See id.

1248 FORDHAM LAW REVIEW [Vol. 79

after-the-fact, self-serving arguments about its motive at the grand jury

proceeding.

258

Instead of applying its own test, the court had simply

accepted the government’s argument that it had no motive to impeach

Bruno and DeMatteis.

259

Finally, Judge Pratt questioned why the

prosecution was using the grand jury at all if the prosecution was so secure

in its indictments that it did not need to challenge exculpatory testimony.

260

e. Summary

The district court excluded Bruno and DeMatteis’s testimony because it

agreed with the government that the nature of the grand jury proceeding

itself provides prosecutors little motive to examine exculpatory

witnesses.

261

It also agreed that, in this case, there was little motive to

examine the witnesses because the jurors did not credit their testimony.

262

The Second Circuit panel admitted the testimony primarily to promote a

policy of fairness to the defendants.

263

It noted that grand jury proceedings

inherently favor the government and that Bruno and DeMatteis were not,

strictly speaking, “unavailable” to the government.

264

The prosecution

would never have lost the opportunity to impeach the testimony had it been

admitted.

265

The Supreme Court implied that the “similar motive” inquiry is factual,

so the legal conclusion that the nature of grand jury proceedings precludes a

finding of similar motive is untenable.

266

The Court also ruled that the

evidentiary terms of the rule must be satisfied; prior testimony cannot be

admitted based on a policy of correcting an unequal balance of power

between two parties or of protecting one party from the other.

267

On remand, the Second Circuit panel upheld the admission of Bruno and

DeMatteis’s testimony because the transcript of their grand jury

examination demonstrated prosecutorial motive sufficient to meet the

requirements of Rule 804(b)(1).

268

The court described a reasonable

examiner test for similar motive which, as explained, would ensure that

258. Id.; see also supra notes 210–11, 253 and accompanying text.

259. DiNapoli, 8 F.3d at 916 (Pratt, J., dissenting); see also supra notes 210–11, 253 and

accompanying text. Judge Robert J. Miner, in his dissent, argued that the prosecution had

actually tried to establish the falsity of the grand jury testimony. DiNapoli, 8 F.3d at 917

(Miner, J., dissenting). He cited the fact that the prosecution had told Bruno that the grand

jurors disbelieved his testimony as an attempt to impeach it and to provide Bruno with an

opportunity to correct it. Id.

260. Id. at 916 (Pratt, J., dissenting) (noting that it is improper to utilize the grand jury for

discovery purposes); see also supra note 166 and accompanying text.

261. See supra notes 209–12 and accompanying text.

262. See supra notes 210–12 and accompanying text.

263. See supra notes 215–22 and accompanying text.

264. See supra notes 215–20 and accompanying text.

265. See supra note 184 and accompanying text.

266. See supra notes 225, 227–28, 246 and accompanying text.

267. See supra note 225 and accompanying text.

268. See supra notes 237, 243 and accompanying text.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1249

“tactical” limitations on questioning would not bar admissibility of prior

testimony.

269

Finally, on rehearing, an en banc majority of the Second Circuit vacated

the panel’s decision and excluded the testimony.

270

It agreed with the

government that there is no motive to examine exculpatory grand jury

witnesses (1) whom the jurors themselves disbelieve, and (2) when the

defendants’ indictments are secure.

271

It also reasoned that the lower

evidentiary burden at the grand jury makes the motive to challenge

exculpatory testimony less “intense” than it would be at trial, and therefore

not “similar.”

272

The court credited the argument that the prosecution’s

desire to maintain the secrecy of information diminishes motive.

273

The courts above considered several factors in applying Rule 804(b)(1)’s

“similar motive” test to Bruno and DeMatteis’s grand jury testimony:

whether the testimony itself was credible, whether the nature of grand jury

examinations precludes a finding of “similar motive,” the power balance

between the prosecution and the defense with respect to obtaining evidence

in the grand jury, whether a “similar motive” ruling may be made as a

matter of law, and whether the “similar motive” analysis encompasses

strategic use of questioning. These issues reappear in the cases that follow.

2. The First Circuit: United States v. Omar

In United States v. Omar,

274

the defendants appealed from convictions

for bank larceny, money laundering, and conspiracy.

275

The charges

stemmed from the 1991 staged hijacking of a Brinks armored car, driven by

one of the defendants, from which the defendants stole approximately

$900,000.

276

The government’s most damning evidence came from the trial

testimony of Lee Najarian, who lived with a friend of defendant Sohiel

Omar named Raymond Femino, and who testified that Omar brought a

large trash bag full of cash to her and Femino’s house on the night of the

robbery.

277

She and Femino had run a trash hauling firm, and she testified

that some of the stolen money had been deposited into the firm’s account,

out of which Omar directed her to write checks on his behalf.

278

Najarian first testified before a grand jury in 1993 and, on that occasion,

denied having any knowledge of the robbery or bank deposits.

279

Several

months later, however, under a grant of immunity, Najarian gave testimony

similar to that which she delivered at trial.

280

At a much earlier grand jury

269. See supra notes 238–43 and accompanying text.

270. See supra notes 244–45 and accompanying text.

271. See supra note 253 and accompanying text.

272. See supra notes 247–53 and accompanying text.

273. See supra note 254 and accompanying text.

274. 104 F.3d 519 (1st Cir. 1997).

275. Id. at 520.

276. Id.

277. Id. at 521.

278. Id.

279. Id.

280. Id.

1250 FORDHAM LAW REVIEW [Vol. 79

session in 1991, before Najarian’s damning testimony, Femino testified “for

about 10 to 20 minutes” on various aspects of the case and “briefly but

flatly denied receiving money from Omar” in any form.

281

Femino died in

1993 and was therefore unavailable to testify at trial.

282

To counter

Najarian’s testimony, the defendants sought to introduce Femino’s 1991

grand jury testimony under Rule 804(b)(1).

283

The district court excluded Femino’s testimony, and the only question on

appeal was whether the exclusion was error.

284

Case law from the U.S.

Court of Appeals for the First Circuit had previously held that Rule

804(b)(1) did not apply to grand jury testimony.

285

The court conceded,

however, that the Supreme Court, in United States v. Salerno, “all but held

that Rule 804(b)(1) could embrace grand jury testimony.”

286

Nonetheless,

the court agreed with the government’s general argument that “the

prosecution ordinarily does not in a grand jury proceeding have the kind of

motive to develop testimony that it would in an ordinary trial or that is

required to meet the express test and rationale of Rule 804(b)(1).”

287

The

court cited certain factors to support its position. First, trials are ordinarily

“last chance” proceedings for both sides;

288

in the grand jury, by

comparison, the government is often only seeking information as part of an

investigation and neither aims to discredit, nor to vouch for, witnesses.

289

Second, because of the low burden that the government must meet at grand

jury proceedings and the fact that the government calls its own witnesses

and can call as many as it likes, discrediting individual grand jury witnesses

is usually not essential, as it would be at trial.

290

Applying the “similar motive” test to Femino’s grand jury testimony, the

First Circuit held that it was not admissible.

291

Because his examination

took place so early in the investigation, long before Najarian offered

testimony that directly contradicted Femino’s, “the government had no

meaningful opportunity to discredit Femino at the time.”

292

Also, because

other evidence already implicated the defendants at the time, and because

Femino’s exculpatory statements were a minor part of his overall testimony,

the government “had no reason to fear that Femino’s terse denials, if he

281. Id.

282. Id.

283. Id.

284. Id. at 520.

285. Id. at 522–23; see United States v. Donlon, 909 F.2d 650, 653 (1st Cir. 1990).

286. Omar, 104 F.3d at 523 (citing United States v. Salerno, 505 U.S. 317, 325 (1992),

remanding for a determination of whether grand jury testimony meets Rule 804(b)(1)’s

“similar motive” requirement, implying that grand jury testimony is admissible under the

rule).

287. See id.

288. See id. (“If a new trial later becomes necessary and the witness proves unavailable, it

may be a fair guess that each side has already done at the original trial all that the party

would do if the declarant were now present for a new trial.”).

289. Id.

290. Id.

291. Id. at 523–24.

292. See id. at 523.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1251

were not directly confronted, would lead the grand jury to refuse to

indict.”

293

The court reasoned that, because the indictment was not in

jeopardy, the government lacked a motive to discredit the exculpatory

testimony similar to the motive it would have at trial.

294

The court also

stated that the government could have been trying to conceal information

from Femino at the early stage of the investigation during which he was

questioned, but the government did not make this argument.

295

Importantly, however, the court, in dicta, stated that, even if the prosecution

had forgone questioning to preserve secrecy, this strategic withholding of

information would contribute to a lack of motive to examine.

296

The primary basis for this court’s decision to exclude Femino’s

testimony was its finding that at the time of his examination, early in the

investigation, the prosecution did not yet possess sufficient information

with which to challenge his exculpatory testimony.

297

The court also,

however, linked “motive” to the strategic considerations that influence

grand jury examination and reasoned that, where it would make strategic

sense for a prosecutor to forgo examination, the government in such cases

lacks the motive necessary to meet “the express test and rationale of Rule

804(b)(1).”

298

Under this reasoning, unless the government has actually

attacked exculpatory grand jury testimony, it would seem easy for a court to

hold that it lacked the motive to do so.

299

293. See id. at 524.

294. See id.

295. See id. at 523–24.

296. See id. (“[I]t is arguable that the government had no meaningful opportunity to

discredit Femino at the time. In any case, it certainly lacked any evident motive to do so. If

the government had had Najarian’s cooperation in 1991, it could well have preferred to keep

it secret from Femino. The prosecutor might have wished to protect a key witness for the

time being or to bargain later with Femino, armed with a perjury charge against him. Given

the other evidence against the defendants, the government surely had no reason to fear that

Femino’s terse denials, if he were not directly confronted, would lead the grand jury to

refuse to indict.” (footnote omitted)).

297. Id. at 523; see also supra note 296.

298. See Omar, 104 F.3d at 523–24 (“Often, the government neither aims to discredit the

witness [in the grand jury] nor to vouch for him. The prosecutor may want to secure a small

piece of evidence as part of an ongoing investigation or to compel an answer by an unwilling

witness or to “freeze” the position of an adverse witness. In particular, discrediting a grand

jury witness is rarely essential, because the government has a modest burden of proof, selects

its own witnesses, and can usually call more of them at its leisure.”); see also supra note

296.

299. This is because the government could always argue that it was not sufficiently

motivated to ask the questions that, under trial conditions, it would have asked; and, the

court has, by implication, credited this argument. See also United States v. DiNapoli, 8 F.3d

909, 914 (2d Cir. 1993) (“In virtually all subsequent proceedings, examiners will be able to

suggest lines of questioning that were not pursued at a prior proceeding. In almost every

criminal case, the Government could probably point to some aspect of cross-examination . . .

that could have been employed . . . at a prior grand jury proceeding.”).

1252 FORDHAM LAW REVIEW [Vol. 79

B. The District of Columbia, Sixth, and Ninth Circuits’ Broad Admissibility

Decisions

In the three cases that follow, the courts admitted exculpatory grand jury

testimony against the government, reasoning, inter alia, that the prosecution

had an adequate motive and opportunity to develop the unavailable

witness’s testimony at the grand jury.

300

1. The District of Columbia Circuit: United States v. Miller

In United States v. Miller,

301

two defendants appealed their convictions

for charges related to wire fraud.

302

They were in the business of providing

collateral, in the form of certificates of deposit issued by the Commercial

Bank of Djibouti, to entities seeking large commercial loans.

303

The Bank,

however, was not properly registered under Djibouti’s laws.

304

Part of the

government’s case depended on showing beyond a reasonable doubt that

the defendants knew the certificates were worthless.

305

To do this, the

prosecution emphasized, for instance, that certificates allegedly worth $17

million were found on the floor in an unlocked office owned by one of the

defendants.

306

To refute such evidence, the defendants sought to call John

S. Matarazzo, who was present when the defendants met with a

representative of the Bank and supposedly received confirmation that the

certificates were legitimate.

307

Matarazzo had testified before the grand

jury earlier as a defense witness but asserted his privilege against self-

incrimination when called at trial.

308

The defendants argued that Matarazzo

was precluded from asserting his privilege under the U.S. Court of Appeals

for the District of Columbia Circuit’s Ellis rule,

309

and that his grand jury

testimony should be admissible under Rule 804(b)(1).

310

300. See United States v. McFall, 558 F.3d 951, 963 (9th Cir. 2009); United States v.

Foster, 128 F.3d 949, 955–56 (6th Cir. 1997); United States v. Miller, 904 F.2d 65, 68 (D.C.

Cir. 1990).

301. 904 F.2d 65 (D.C. Cir. 1990).

302. Id. at 65.

303. Id. at 66.

304. Id.

305. See id. at 68.

306. Id. at 66, 68.

307. Id. at 66.

308. Id.

309. Id. at 66–67; see also Ellis v. United States, 416 F.2d 791, 800 (D.C. Cir. 1969).

Under the Ellis rule, unique in the U.S. Court of Appeals for the District of Columbia Circuit

at the time, a witness who knowingly waived his Fifth Amendment rights and testified in

front of the grand jury was not eligible to later invoke those rights and refuse to testify at

trial. Ellis, 416 F.2d at 800; see also Miller, 904 F.2d at 67. In Miller, the defendants argued

that if Matarazzo had in fact waived his privilege when testifying before the grand jury, then

it was error to allow him to refuse to testify at trial; or, in the alternative, if Matarazzo had

not waived his privilege before the grand jury, then it was error to refuse to admit his grand

jury testimony under Rule 804(b)(1). 904 F.2d at 66–67. The D.C. Circuit remanded to

determine whether Matarazzo had knowingly waived his rights but held that either way the

convictions were reversed. Id. at 67.

310. Id.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1253

With little discussion, the court held that, barring a determination that

Matarazzo was required to testify under the Ellis rule, his grand jury

testimony should have been admitted.

311

The court concluded that the

prosecution had the same motive to question Matarazzo before the grand

jury as it did at trial.

312

This is because, “[b]efore the grand jury and at

trial, Matarazzo’s testimony was to be directed to the same issue—the guilt

or innocence of [the defendants].”

313

In discussing whether Matarazzo had knowingly waived his privilege

before the grand jury as part of its Ellis analysis, the court noted that the

government, which was the only party in a position to know what transpired

at the grand jury proceeding, behaved in a self-serving and “somewhat

disingenuous[]” manner in suggesting that Matarazzo had not waived his

privilege.

314

The court also recognized that the prosecution’s

“contemptuous objection” to the defendant’s request to introduce

Matarazzo’s grand jury testimony was “promptly endorsed” by the trial

court.

315

The court’s discussion on these points suggests that part of the

basis for its holding may have been to right a perceived unfairness

perpetrated against the defendants when the prosecution’s overzealous

behavior was endorsed by the trial court.

316

But, the court’s primary reason

for its holding—that, after examining Matarazzo’s grand jury testimony, it

could “see no reason why the government’s position in the second

proceeding would differ from the first”—was based not on concern for

protecting the defendant, but on the fact that the prosecution had a

demonstrated motive at the grand jury proceeding to attack Matarazzo’s

testimony.

317

2. The Sixth Circuit: United States v. Foster

In United States v. Foster,

318

the defendant appealed from convictions

related to cocaine possession and intent to distribute.

319

He was convicted

on evidence that was largely circumstantial

320

—namely, records seized

from his home indicating that he had made large cash purchases despite

lacking a substantial source of income, and his presence in the home of

311. Id.

312. Id. at 68.

313. Id.

314. See id. at 67 (“The government, somewhat disingenuously in its brief to this court,

claims the prosecutor ‘conceded’ before the district judge that Matarazzo had not waived his

privilege. (Since the government was attempting to prevent Matarazzo’s testimony at trial,

that is an interesting use of the word ‘conceded.’) In fact, the prosecutor, who presumably

was in a position to know what occurred, represented to the court below that ‘there was not a

waiver as such,’ whatever that means.”).

315. See id. at 68.

316. See id. at 67–68 (noting that the government’s only argument against the admission

of the grand jury testimony (which was endorsed by the trial court) was an overly formalistic

argument that the issue was not properly preserved for appeal).

317. See id. at 68 & n.3.

318. 128 F.3d 949 (6th Cir. 1997).

319. Id. at 950.

320. Id. at 956.

1254 FORDHAM LAW REVIEW [Vol. 79

another suspected drug trafficker, Timothy Williams, when Williams’s

home was searched and large amounts of money and cocaine were found.

321

Before the defendant, Charles H. Foster, was indicted, Williams testified

before a grand jury under a grant of immunity on three separate

occasions.

322

Each time, Williams claimed that Foster had not been

involved in selling drugs and that Foster would not have been present in

Williams’s home had he known about Williams’s narcotics activities.

323

Furthermore, “the government repeatedly made it clear to Williams that it

believed he was lying and that his testimony could subject him to perjury

charges.”

324

After his indictment, Foster’s attorney requested a copy of

Williams’s grand jury testimony.

325

The government did not provide it and

told Foster’s attorney only that Williams had “provided false exculpatory

testimony” about Foster.

326

Approximately three weeks before Foster’s trial was to begin, the district

court requested copies of Williams’s grand jury testimony.

327

After

guarding them for approximately two weeks, the court ordered the

government to release the transcripts to Foster’s attorney.

328

As soon as he

received them, Foster’s attorney subpoenaed Williams and learned that an

Assistant U.S. Attorney allegedly told Williams he would revoke

Williams’s grant of immunity if Williams agreed to testify for Foster.

329

Once the trial began, Foster’s attorney moved for a continuance, claiming

that he had not received Williams’s grand jury transcripts in time to

subpoena Williams.

330

The district court determined, however, that

Foster’s attorney failed to exercise due diligence because he could have

attempted to subpoena Williams as soon as the government informed him

that Williams provided “false exculpatory testimony.”

331

The district court

refused to admit the grand jury testimony under Rule 804(b)(1) because it

found that Williams was not “unavailable” where his absence was caused

by a lack of diligence in procuring him.

332

On appeal, Foster’s attorney argued that the continuance should have

been granted because governmental misconduct prevented him from

subpoenaing Williams.

333

He also argued that the grand jury testimony

should have been admitted under Rule 804(b)(1).

334

The U.S. Court of

Appeals for the Sixth Circuit reasoned that the government had not behaved

321. Id. at 950–51.

322. Id. at 951.

323. Id.

324. Id. at 954.

325. Id. at 951.

326. Id. (internal quotation marks omitted).

327. Id.

328. Id.

329. Id. at 951–52.

330. Id. at 952.

331. Id. at 951–52, 955 (internal quotation marks omitted).

332. Id. at 952.

333. Id.

334. Id.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1255

improperly by failing to turn over the grand jury transcripts sooner,

335

but

that its conduct in “warning” Williams’s attorney that Williams would be

subject to prosecution if he testified was possibly an attempt to intimidate

the witness.

336

The court reasoned that the district court, however, had

waited too long to order the government to turn over the transcripts and that

Foster’s failure to subpoena Williams earlier was therefore not caused by a

lack of due diligence.

337

The court also reasoned that the grand jury

testimony should have been admitted because the government was able to

“strenuously” question Williams before the grand jury, and “throughout

[Williams’s] testimony he continually asserted Foster’s innocence even

though he was repeatedly warned about the dangers of perjury and the risk

of losing his immunity.”

338

The court noted that “the two factors which led the Second Circuit to

reject finding that the prosecutor had a similar motive in DiNapoli are not

present in this case”: (1) Foster was indicted after Williams was questioned

in the grand jury, and (2) there was no indication that the grand jurors as a

whole did not believe Williams’s testimony.

339

Although the court may

seem to have applied a bright-line rule favoring the admissibility of

exculpatory grand jury testimony against the government,

340

the court’s

method of analysis—comparing the circumstances of the grand jury

proceeding in this case with those present in DiNapoli—suggests that it

applied a presumption in favor of admissibility unless specific factors

indicate that the testimony should not be admissible.

341

The circumstances

of this case favored such a holding: the facts indicated both the importance

of the witness’s testimony—because the indictment had not yet been

handed down—and the government’s “strenuous” opposition to that

testimony before the grand jury.

342

These are the same characteristics that

would presumably govern the prosecution’s attitude toward the testimony at

trial.

343

It is also noteworthy that the court expressed disdain for the

activities of the prosecution and the district court with respect to

335. Id. at n.2.

336. See id. at 954.

337. See id. at 955.

338. Id. & n.6.

339. See id. at 956 n.7; United States v. DiNapoli, 8 F.3d 909, 914–15 (2d Cir. 1993); see

also supra note 253 and accompanying text.

340. See, for example, the court’s reading of the holding in Miller: “Three Circuits have

suggested and the District of Columbia Circuit has affirmatively ruled that the government

has the same motive to develop a witness’ testimony during a grand jury proceeding as it

does at trial.” Foster, 128 F.3d at 955 (citing United States v. Miller, 904 F.2d 65, 68 (D.C.

Cir. 1990)).

341. Those specific factors are the ones present in DiNapoli: that the grand jurors

discredited the grand jury testimony, and that the defendant had already been indicted by the

time the exculpatory grand jury testimony was recorded. Id. at 956 n.7 (citing United States

v. DiNapoli, 8 F.3d 909, 914–15 (2d Cir. 1993)).

342. See id. at 951, 955.

343. See, e.g., United States v. Omar, 104 F.3d 519, 523 (1st Cir. 1997) (comparing the

stakes of trial proceedings with those of grand jury proceedings); see also supra notes 288–

90 and accompanying text.

1256 FORDHAM LAW REVIEW [Vol. 79

withholding information from the defense.

344

It suggests that part of the

reason for the court’s holding was to right a wrong that it believed had been

committed against the defendant.

345

3. The Ninth Circuit: United States v. McFall

Monte D. McFall, a California lobbyist, appealed from convictions

related to extortion, honest services mail fraud, and witness tampering.

346

One of the charges concerned an alleged scheme to extort money from a

company called Digital Angel that manufactured electronic tracking

devices.

347

California’s Office of Criminal Justice Planning (OCJP)

awarded a large grant to Digital Angel to fund a pilot project using its

tracking devices.

348

McFall and Neat Allen Sawyer, Chief Deputy Director

of the OCJP, met with an official for the company and allegedly promised

that more money would be forthcoming if, and only if, Digital Angel paid a

$100,000 consulting fee to a company owned by McFall.

349

Sawyer was eventually indicted and pled guilty to one count of honest

services mail fraud.

350

As part of his plea agreement, he agreed to

cooperate with the government “with respect to its investigations and

prosecutions of public corruption in the Eastern District of California and

elsewhere.”

351

Prior to his indictment, however, Sawyer appeared before a

grand jury and testified at length about the events involving Digital

Angel.

352

He called the charge that he and McFall had attempted to extort

Digital Angel “ridiculous,” and he maintained the same version of the story

later in his post-plea debriefing.

353

At McFall’s trial, the government declined to call Sawyer as a witness

despite its authority to do so pursuant to his plea agreement.

354

When

McFall called him as a witness, Sawyer invoked his privilege against self-

incrimination.

355

Consequently, McFall sought to introduce Sawyer’s

grand jury testimony under Rule 804(b)(1).

356

The district court excluded

the testimony, however, citing concerns about unfair prejudice to the

government and concluding that the prosecution lacked an adequate motive

to examine Sawyer before the grand jury.

357

In support of its conclusion,

344. See Foster, 128 F.3d at 952 n.2.

345. But cf. United States v. Salerno, 505 U.S. 317, 326 (1992) (Blackmun, J.,

concurring) (arguing that the “similar motive” analysis in a given case should not express a

policy favoring either the defendant or the government, but should “reflect[] narrow

concerns of ensuring the reliability of evidence”).

346. United States v. McFall, 558 F.3d 951, 953 (9th Cir. 2009).

347. Id. at 955.

348. Id.

349. See id. at 953, 955.

350. Id. at 954.

351. Id. (internal quotation marks omitted).

352. Id. at 960–61.

353. See id. at 961 (internal quotation marks omitted).

354. Id. at 964.

355. Id. at 961.

356. Id.

357. See id. at 960.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1257

the district court cited several key findings, among them the following: (1)

the grand jury proceeding was fact-finding in nature, not adversarial,

“notwithstanding the fact that the government’s attorneys did in fact

question Mr. Sawyer”; (2) “the motive for obtaining Mr. Sawyer’s

testimony . . . was completely different from what it would be” at trial; and

(3) Sawyer was the subject of a perjury indictment resulting from his

testimony before the grand jury.

358

On appeal, the government argued,

inter alia, that Sawyer’s grand jury testimony should not have been

admitted because it was misleading.

359

The U.S. Court of Appeals for the Ninth Circuit began its analysis by

noting the circuit split concerning the appropriate “level of generality” at

which to compare grand jury and trial motive for purposes of Rule

804(b)(1).

360

The Miller court used “a high level of generality,” where

motive to merely show the guilt or innocence of the defendant at both

proceedings would be sufficient.

361

McFall argued that Sawyer’s testimony

should be admissible under the Miller test because “the government’s

primary goal in questioning Sawyer before the grand jury was to

incriminate McFall,” the “same” motive it would have at trial.

362

The

DiNapoli court, in contrast, compared motives at “a fine-grained level of

particularity” and required “a substantially similar degree of interest in

prevailing” at both proceedings.

363

The Ninth Circuit noted that the

prosecution’s motive in examining Sawyer before the grand jury was

“likely not as intense as it would have been at trial,” but that requiring an

“identical quantum of motivation” violates the plain language of Rule

804(b)(1).

364

Because the prosecution’s “fundamental objective” in

examining Sawyer before the grand jury was to elicit testimony damaging

to McFall—the same motive that the prosecution would hypothetically have

at trial—the court concluded that Rule 804(b)(1)’s “similar motive” test had

been met, and Sawyer’s testimony should have been admitted.

365

The court

distinguished its facts from those in DiNapoli: Although McFall had

already been indicted, the final superseding indictment against him was not

obtained until after Sawyer was questioned, and, the nature of the relevant

charge against McFall—conspiracy to extort—provided prosecutors

questioning Sawyer with ample opportunity to develop testimony

incriminating McFall, despite the existing indictment.

366

358. Id. at 961–62 (emphasis added).

359. See id. at 964 n.11.

360. Id. at 962.

361. Id. (citing United States v. Miller, 904 F.2d 65, 68 (D.C. Cir. 1990)).

362. Id.

363. Id. (quoting United States v. DiNapoli, 8 F.3d 909, 912 (2d Cir. 1993)) (internal

quotation marks omitted).

364. Id. at 963 (“As one of the dissenters in DiNapoli . . . noted, the requirement of

similar ‘intensity’ of motivation conflicts with the rule’s plain language, which requires

‘similar’ but not identical motivation.” (citing United States v. DiNapoli, 8 F.3d 909, 916 (2d

Cir. 1993) (Pratt, J., dissenting))); see also supra notes 255–60 and accompanying text.

365. McFall, 558 F.3d at 963.

366. Id.

1258 FORDHAM LAW REVIEW [Vol. 79

Finally, the court reasoned on policy grounds that Sawyer’s testimony

should have been admitted because, due to Sawyer’s plea agreement, he

was only “unavailable” to McFall.

367

The government could have required

him to testify at any time.

368

It also reasoned that the government’s motion

for a downward sentencing departure at Sawyer’s sentencing hearing,

implying its endorsement of Sawyer’s post-plea cooperation—including his

continued denial of McFall’s wrongdoing with respect to Digital Angel—

undercut the government’s contention that Sawyer’s grand jury testimony

was “unreliable and misleading.”

369

The Ninth Circuit’s holding was based primarily on comparison of the

prosecution’s examination of Sawyer before the grand jury with the

examination it would hypothetically wish to conduct at trial.

370

The court

eschewed DiNapoli’s “intensity” inquiry

371

and rejected the district court’s

suggestion that the type of proceeding itself—fact-finding as opposed to

adversarial—precluded a finding of “similar motive” regardless of the

questioning that actually took place.

372

The court’s discussion of possible

prosecutorial disingenuousness regarding the truthfulness of Sawyer’s

testimony, however, suggests that it may itself have judged whether Sawyer

was telling the truth and desired to check prosecutorial misconduct.

373

III.

ANALYSIS OF DECISIONS AND PROPOSED RESOLUTION

The cases described above exemplify recent jurisprudence concerning the

admission of grand jury testimony against the government under Rule

804(b)(1). In these cases, courts reached their holdings after analyzing a

common set of recurring factors. Some of them are the same factors upon

which holdings pertaining to the admissibility of preliminary hearing

testimony against defendants, discussed in Part I.D.2.b.i, are based. For

both grand jury and preliminary hearing proceedings, specific

characteristics of the proceedings themselves deter attorneys from

examining witnesses in as complete a manner as they would at trial.

374

Yet,

where grand jury examinations are concerned, courts have been willing to

respect that prosecutors’ strategic decisions to limit questioning should

count against a finding of “similar motive” and thus bar admission of grand

jury testimony.

375

In contrast, courts have been less likely to view defense

attorneys’ similar choices to limit questioning as a bar to admitting

preliminary hearing testimony. This Note argues that the strategic factors—

which were illustrated in the principal cases above, and upon which the

difference in admissibility holdings between grand jury and preliminary

367. Id. at 964.

368. Id.

369. Id. at n.11.

370. See id. at 963.

371. See id.

372. Id. at 961–62.

373. See id. at 964 n.11.

374. See supra Part I.D.2.b.i.

375. See supra Part I.D.2.b.i.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1259

hearing testimony is based—should not be considered in the Rule 804(b)(1)

analysis. Likewise, neither generalized policy concerns nor favoritism for

the government or the defendant should affect the Rule 804(b)(1)

admissibility determination.

Part III.A discusses the holdings in the principle cases from Part II and

distills from them a set of factors that the courts considered in their

admissibility determinations. This Part analyzes the case holdings and the

decisive factors in light of the evidentiary purposes of Rule 804(b)(1) and

divides the factors into two categories—those which should legitimately be

considered in the “similar motive” analysis and those which should not.

Part III.B proposes an objective test for “similar motive” at the grand jury

that is designed to avoid the factors that are beyond the scope of Rule

804(b)(1).

A. Analysis of Circuit Court Decisions

In evidentiary terms, Rule 804(b)(1) balances the fairness of admitting

testimony against a party with the necessity of providing as much

information as possible to the fact-finder.

376

Under the liberalized hearsay

rules embodied in the Federal Rules of Evidence, the common law’s

formalistic tests for assuring that the opposing party conducted substantially

the same cross-examination at the prior proceeding that it would conduct at

trial have given way to more flexible admissibility requirements.

377

Rather

than focus on “identity of parties” and “identity of issues,” the drafters of

the Federal Rules of Evidence centered the admissibility inquiry on the

interests of the parties involved, and hence on the “motive” for

examination.

378

In this way, they broadened the meaning of fairness to

litigants

379

and also satisfied necessity concerns by creating a test that

admits a potentially greater range of prior testimony hearsay than would

have been admissible at the common law.

380

Nonetheless, the purpose of

the exception remains to admit prior testimony only when the opposing

party’s “opportunity” to examine the witness at the prior proceeding was

similar enough to the opportunity it would have at trial to merit holding the

party to the prior testimony.

381

The rule’s “opportunity” element thus

guards against parties being able to determine what testimony may later be

admitted against them by strategically limiting prior proceeding

questioning.

382

Given these considerations, it is clear that no bright-line

test could ever be applied to admit or exclude all grand jury or preliminary

hearing testimony.

383

It is also clear that both the narrow and broad

376. See supra Part I.C.1.

377. See supra Part I.C.2–3.

378. See supra Part I.C.3.b.

379. The drafters did this by supplanting the common law test—under which similarity of

issues and privity relationships stood in as proxies for the interests of parties—with a test

that inquires into the parties’ interests or motivations themselves. See supra Part I.C.

380. See supra notes 107–08 and accompanying text; see also supra Part I.C.2–3.

381. See supra Part I.D.2.a.

382. See supra Part I.D.2.a.

383. See supra text accompanying note 228.

1260 FORDHAM LAW REVIEW [Vol. 79

interpretations of Rule 804(b)(1)’s “similar motive” requirement, discussed

in Part II, fall short of fulfilling the evidentiary purposes of the exception.

1. The Narrow Admissibility Decisions

Although they do not adhere to a bright-line rule, the Second and First

Circuits utilize a test under which exculpatory grand jury testimony would

almost never be admissible against the government.

384

The Second

Circuit’s test considers “whether the party resisting the offered testimony at

a pending proceeding had at a prior proceeding an interest of substantially

similar intensity to prove (or disprove) the same side of a substantially

similar issue.”

385

The First Circuit, in comparison, expresses concern that

the very nature of grand jury proceedings provides little incentive for the

government to examine exculpatory witnesses with a motive “similar” to

that which would be present under trial conditions; therefore, grand jury

testimony can almost never satisfy “the express test and rationale of Rule

804(b)(1).”

386

Both of these positions bear an essential flaw.

By requiring the opposing party to show an interest of comparable

“intensity” to disprove the witness’s testimony at the prior proceeding, the

Second Circuit’s test adds a stringency that Rule 804(b)(1)’s plain language

does not support.

387

As Justice Blackmun argued in his United States v.

Salerno concurrence, “‘similar motive’ does not mean ‘identical

motive.’”

388

By looking for a quantum of motivation that substantially

matches the quantum present at trial, the Second Circuit effectively

collapses Rule 804(b)(1)’s test into one that looks for the same motivation.

The government could always argue that, given whatever circumstances

prevailed at a particular grand jury proceeding, its motive to examine the

witness was not as intense as its motive at trial.

389

From a pure policy

perspective, this argument might be difficult to refute because witnesses are

examined in front of grand juries under a wide array of circumstances,

many of which provide little incentive for aggressive challenges to

exculpatory testimony.

390

Under the evidentiary rule as it stands, however,

the test requires “similar,” not the “same,” motivation.

391

To read the rule

looking for the same quantum of motivation at both proceedings harks back

to the common law’s excessively formalistic requirements that ensured the

strictest fairness to the opposing party, but at the expense of necessity to

fact-finders.

392

Such a reading of the rule ignores the liberalizing tendency

384. See United States v. Omar, 104 F.3d 519, 523 (1st Cir. 1997); United States v.

DiNapoli, 8 F.3d 909, 914–15 (2d Cir. 1993); see also supra Part II.A.

385. See DiNapoli, 8 F.3d at 914–15; see also supra Part II.A.1.d.

386. See Omar, 104 F.3d at 523; see also supra note 298 and accompanying text.

387. See, e.g., United States v. McFall, 558 F.3d 951, 963 (9th Cir. 2009) (reasoning, in

criticism of the DiNapoli opinion, that “Rule 804(b)(1) does not require an identical quantum

of motivation”).

388. United States v. Salerno, 505 U.S. 317, 326 (1992) (Blackmun, J., concurring).

389. See supra note 299 and accompanying text.

390. See supra Part I.D.2.b.i.

391. F

ED. R. EVID. 804(b)(1); see also supra text accompanying note 228.

392. See supra Part I.C.2.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1261

of the Federal Rules of Evidence.

393

Furthermore, with respect to grand

jury testimony, the “same motive” test is one that could likely only be met

where the indictment was in doubt such that the prosecution felt compelled

to actively discredit, rather than sidestep, unexpected exculpatory

statements.

394

Because this is not often the case, requiring the prosecution

to have had the “same motive” would almost always result in exculpatory

testimony developed before the grand jury being inadmissible at trial.

The decision in United States v. Omar

395

provides a rich context for

discussing how strategic concerns bear on “motive.” In this case, the First

Circuit ruled against admission of exculpatory grand jury testimony on

generalized reasoning that the grand jury proceeding itself does not create a

motive sufficient for prosecutors to examine exculpatory witnesses.

396

This

reasoning ignores that Rule 804(b)(1) was designed to admit prior

testimony that meets certain guarantees of fairness and reliability without

regard for the type of proceeding at which the declarant testified.

397

The

internal logic of the rule suggests that the admissibility inquiry in a given

case should focus on whether the prior testimony has met the “similar

motive” standard of the rule, not on the pressures common to proceedings

of a certain type. By allowing the “similar motive” inquiry to be colored by

the strategic choices that prosecutors commonly make at grand jury

proceedings, the court ensured strict fairness to the prosecution, but it failed

to account for the “necessity” concerns that Rule 804(b)(1) also

embodies.

398

In other words, the court’s reasoning that prosecutors

conducting grand jury examinations ordinarily do not have the motive

necessary to meet “the express test and rationale of Rule 804(b)(1)”

399

ignores that Rule 804(b)(1) requires “similar”—not “same”—motive,

400

and that in doing so the rule satisfies the “necessity” concern as well as the

“fairness” concern.

The First Circuit also ignored a fundamental principle of the prior

testimony admissibility inquiry: a party’s strategic choices during

questioning should not influence the court’s admissibility determination

where a meaningful opportunity to develop the testimony was otherwise

present.

401

In effect, the court reasoned that because it makes sense,

strategically, for prosecutors to forgo lines of questioning at grand jury

proceedings to preserve the secrecy of information, prosecutors will rarely

have a motive to attack witness testimony at the grand jury that is “similar”

to the motive they would have at trial, where they have no secrets to

preserve.

402

This may be true—and, as a result, it might make sense from a

393. See supra Part I.C.3.

394. Cf. text accompanying note 290.

395. 104 F.3d 519 (1st Cir. 1997).

396. See supra Part II.A.2.

397. See supra notes 82–84 and accompanying text.

398. See supra Part I.C.1.

399. Omar, 104 F.3d at 523.

400. See supra note 228 and accompanying text.

401. See supra Part I.D.2.a; see also supra notes 230–34 and accompanying text.

402. See Omar, 104 F.3d at 523.

1262 FORDHAM LAW REVIEW [Vol. 79

policy perspective to exclude all exculpatory grand jury testimony offered

against the government.

403

But, in evidentiary terms, the rule is not

concerned with generalized policy considerations beyond balancing fairness

to litigants with the necessity of information for fact-finders.

404

Also, the

rule’s “opportunity” test stands as a reminder that attorneys examining

witnesses should not be able to control, through their strategic decisions, the

later admissibility of statements under the hearsay exception for prior

testimony if the witness becomes unavailable.

405

Neither the common law hearsay exception for prior testimony nor the

Federal Rule as enacted by Congress emphasized the type of proceeding at

which the declarant testified.

406

As the exception developed, it was

liberalized to admit more evidence at trial, as long as that evidence met the

rule’s standard of reliability based on the opportunity for examination.

407

The inherent power that the prosecution has in conducting grand jury

investigations

408

means that when applying Rule 804(b)(1) to grand jury

testimony offered against the government, courts must be especially

vigilant to prevent prosecutorial control of the proceeding from influencing

the later admissibility of the testimony. Just because a prosecutor

conducting a grand jury investigation might have the luxury of not

challenging exculpatory testimony does not mean there was no “motive” to

do so.

409

By taking strategy into account when determining whether a

prosecutor had adequate motive to examine a grand jury witness, the

Second and First Circuits have allowed the “similar motive” analysis to

stray from the narrow evidentiary purposes of the rule and have instituted a

policy favoring the government’s interests with respect to exculpatory

grand jury testimony.

2. The Broad Admissibility Decisions

Unlike the Second and First Circuits, the District of Columbia, Sixth, and

Ninth Circuits have created a presumption of admissibility against the

government for exculpatory grand jury testimony based on the fact that at

both proceedings the government is adverse to any testimony exculpating

the subject of its grand jury investigation.

410

The Sixth and Ninth Circuits,

which had the benefit of comparing their cases with United States v.

DiNapoli,

411

each noted that the particular facts upon which the DiNapoli

403. See supra Part I.D.2.b.i. Compare supra text accompanying note 233 with supra

note 167 and accompanying text.

404. See supra Part I.C.1; see also supra note 225 and accompanying text.

405. See supra Part I.D.2.a.

406. See supra notes 82–84, 109 and accompanying text.

407. See supra Part I.C.2–3.

408. See supra notes 157–65, 218 and accompanying text.

409. See supra notes 230–34 and accompanying text.

410. See United States v. McFall, 558 F.3d 951, 963 (9th Cir. 2009); United States v.

Foster, 128 F.3d 949, 955–56 (6th Cir. 1997); United States v. Miller, 904 F.2d 65, 68 (D.C.

Cir. 1990).

411. 8 F.3d 909 (2d Cir. 1993).

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1263

court relied were not present in their cases.

412

Specifically, the final

indictment had not yet been handed down at the time of questioning, and

the grand jurors had not taken the unusual step of informing the prosecution

that they did not believe the witnesses’ exculpatory testimony.

413

The

comparison with DiNapoli’s facts suggests that the Sixth and Ninth Circuits

employed a presumption of admissibility based upon prosecutorial

adversity (from Miller

414

) that could be overcome in circumstances such as

those present in DiNapoli. In other words, these courts employed a test

where grand jury testimony is presumed to be admissible against the

government unless rather rare circumstances prevailed at the grand jury.

This rule is inadequate because it does not place enough emphasis on

whether the prosecution actually had a “similar motive,” in evidentiary

terms, to examine the testimony of a grand jury witness. Instead, it focuses

only on whether the prosecution would have been adverse to the witness’s

testimony at the time it was delivered.

415

Admitting grand jury testimony

against the government under such a loose standard might go a long way

toward countering the prosecution’s inherently greater power with respect

to developing evidence in the grand jury;

416

but, as the Supreme Court has

held, an interpretation of Rule 804(b)(1) that bypasses its evidentiary

requirements in the interest of evening the odds for the defense violates the

fundamental character of the Federal Rules of Evidence.

417

Subscribing to

the factual inquiry that the rule calls for, one must concede that, strategic

concerns aside, there will be times when the prosecution does not have an

adequate motive to develop some aspect of a grand jury witness’s

exculpatory testimony, even though the prosecution might meet a minimal

standard of adversity at the time of the questioning. So, a line of holdings

that presumes exculpatory grand jury testimony is admissible against the

government except under rather rare circumstances, such as those in

DiNapoli, violates the scheme for admissibility set out in the Federal Rules

of Evidence.

418

3. Analysis of Deciding Factors

The case holdings discussed above, along with the decisions admitting

preliminary hearing testimony against defendants discussed generally in

Part I.D.2.b.i, were based on courts’ analyses of a set of factors which

appeared in some or all of the cases and dissenting opinions. They are as

follows:

412. See McFall, 558 F.3d at 963; Foster, 128 F.3d at 956 n.7.

413. Cf. DiNapoli, 8 F.3d at 915.

414. See Miller, 904 F.2d at 68; see also supra text accompanying notes 311–13.

415. See, e.g., McFall, 558 F.3d at 962–63 (“The Miller Court concluded that ‘[b]efore

the grand jury and at trial’ the testimony of an unavailable co-conspirator ‘was to be directed

to the same issue—the guilt or innocence’ of the defendants, and thus, the government’s

motives were sufficiently similar. . . . On balance, we agree with the D.C. Circuit’s

elaboration of the ‘similar motive’ test . . . .”).

416. See supra notes 157–65, 218 and accompanying text.

417. See supra Part II.A.1.b.

418. See supra Part II.A.1.b.

1264 FORDHAM LAW REVIEW [Vol. 79

1. Whether, with regard to the specific issue for which the testimony was

offered at trial, the prosecution or defense had enough information at

the time the witness was questioned to challenge the testimony.

419

2. Whether the examination conducted by the prosecution or defense

revealed a motive to challenge the testimony, even if the challenge

was not as aggressive or as complete as it would have been at trial.

420

3. Whether the prosecution or defense limited questioning on a specific

issue to maintain the secrecy of information.

421

4. Whether the characteristics inherent in the proceeding at which the

declarant testified—such as the low probable cause burden or the non-

adversarial nature of the proceeding—acted to limit the questioning of

witnesses.

422

5. Whether, in a grand jury proceeding, the indictment was secure, or

whether, in a preliminary hearing proceeding, the defense had a

reasonable chance of overcoming the prosecution’s burden of

probable cause.

423

6. Whether the government, the defendant, or the lower court behaved

disingenuously or overzealously, and whether admitting or excluding

prior testimony would seem to redress the behavior.

424

7. Whether the declarant was only “unavailable” to the defendant, such

that admitting the prior testimony would not prejudice the

government.

425

8. Whether recognizing the government’s inherently more powerful

position with respect to obtaining evidence in the grand jury

encourages a policy of admitting grand jury testimony against the

government.

426

419. See United States v. Salerno, 505 U.S. 317, 326–32 (1992) (Stevens, J., dissenting);

McFall, 558 F.3d at 963; Miller, 904 F.2d at 68 & n.3; see also supra notes 230–32, 312–13,

317, 365 and accompanying text.

420. See Salerno, 505 U.S. at 326–32 (1992) (Stevens, J., dissenting); McFall, 558 F.3d

at 963; United States v. Omar, 104 F.3d 519, 523 (1st Cir. 1997); United States v. Foster,

128 F.3d 949, 955 & n.6 (6th Cir. 1997); Salerno II, 974 F.2d 231, 240–41 (2d Cir. 1992),

vacated en banc sub nom. United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993); Miller, 904

F.2d at 68 & n.3; see also supra notes 230–32, 237, 292, 297, 312–13, 317, 338, 364–65,

370 and accompanying text.

421. See Salerno, 505 U.S. at 329–30 (Stevens, J., dissenting); Omar, 104 F.3d at 523–

24; United States v. DiNapoli, 8 F.3d 909, 915 (2d Cir. 1993); see also supra notes 233–34,

254, 295–96 and accompanying text.

422. See Salerno, 505 U.S. at 325–26 (Blackmun, J., concurring); McFall, 558 F.3d at

961–62; Omar, 104 F.3d at 523–24; DiNapoli, 8 F.3d at 912–15; Salerno I, 937 F.2d 797,

806 (2d Cir. 1991), rev’d, 505 U.S. 317 (1992); see also supra notes 211–12, 227–28, 247–

51, 287–90, 298, 358 and accompanying text.

423. See McFall, 558 F.3d at 963; Omar, 104 F.3d at 524; Foster, 128 F.3d at 956 n.7;

DiNapoli, 8 F.3d at 915; see also supra notes 253, 293–94, 339, 366 and accompanying text.

424. See Foster, 128 F.3d at 952 & n.2, 954–55; Salerno I, 937 F.2d at 807; Miller, 904

F.2d at 67–68; see also supra notes 221–22, 314–16, 335–37, 344–45 and accompanying

text.

425. See McFall, 558 F.3d at 964; Salerno I, 937 F.2d at 806–07; see also supra notes

215–17, 367–68 and accompanying text.

426. See Salerno, 505 U.S. at 326 (Blackmun, J., concurring); Salerno I, 937 F.2d at 806–

07; see also supra notes 215–20, 229 and accompanying text.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1265

9. Whether the court believed the prior testimony was truthful.

427

These factors may be divided into two categories, those that may

legitimately be considered as part of the “similar motive” analysis given the

history and evidentiary purposes of Rule 804(b)(1), and those that are

beyond the scope of the rule and should not affect admissibility decisions.

Of the factors listed, only the first two are a legitimate subject of the

“similar motive” inquiry. They alone adhere to the evidentiary purposes of

Rule 804(b)(1) and bear on “motive” to examine at a prior proceeding

without introducing strategy, policy, favoritism, or impermissible judicial

discretion into the analysis. Factors (3)–(5) are each relevant to a

discussion of whether the prosecution, before the grand jury, or the defense,

in the preliminary hearing, would have felt an incentive to examine its

witness with the same “intensity” as it might at trial. But these factors are

not relevant to whether the bare “motive” to examine, for purposes of the

hearsay exception, existed.

428

Factors (6)–(8) concern issues of policy

which are beyond the narrow evidentiary scope of the Federal Rules of

Evidence in general, and Rule 804(b)(1) in particular. Finally, factor (9),

which concerns whether the court believes that the prior testimony should

be admitted or excluded on the basis of its perceived truthfulness,

429

violates the intent of the advisory committee that judicial discretion should

not play a role in the hearsay admissibility analysis.

430

B. Proposed Resolution

As courts and commentators have noted, neither the Federal Rules

themselves nor the Supreme Court’s opinions definitively state what kind of

test courts should use in determining whether a “similar motive” exists for

purposes of Rule 804(b)(1).

431

The Rules’ drafters purposely avoided

boxing courts into a rigid inquiry that might detract from a case-by-case

analysis.

432

The fact that courts have employed differing admissibility

standards for grand jury testimony offered against the government suggests,

however, that a uniform “similar motive” test for grand jury testimony

might be needed. This test should avoid anything approaching a bright-line

rule, and it should prevent strategic use of questioning, policy

considerations, favoritism, or judicial discretion from influencing the

admissibility determination.

On remand from the Supreme Court’s decision in United States v.

Salerno, the Second Circuit panel employed a two-step “reasonable

examiner” test that suggests a solution.

433

Because the admissibility

427. See McFall, 558 F.3d at 961–62, 964 n.11; DiNapoli, 8 F.3d at 916 (Pratt, J.,

dissenting); Salerno I, 937 F.2d at 806; see also supra notes 210, 212, 258–59, 358, 369, 373

and accompanying text.

428. See supra notes 233–34 and accompanying text.

429. See, e.g., supra notes 203, 210, 212 and accompanying text.

430. See supra notes 95–96 and accompanying text.

431. See supra Parts I.D.2.b, II.A.1.b.

432. See supra notes 140–41 and accompanying text.

433. See supra Part II.A.1.c.

1266 FORDHAM LAW REVIEW [Vol. 79

inquiry for prior testimony concerns whether it is fair to hold a party to

testimony that was developed in a previous proceeding, and it is only fair to

do so when the opposing party had an adequate opportunity to develop the

testimony by examination or cross-examination,

434

the first step in the

admissibility inquiry should be for the court to look at the examination that

the prosecution actually conducted before the grand jury.

435

If the

prosecution conducted even a limited examination designed to discredit the

exculpatory testimony with regard to the issues now relevant at trial, it

should be very difficult for the government to argue that it lacked a motive

to do so.

436

It is not enough, however, to stop with an inquiry into the extent of

examination that the prosecution actually conducted.

437

Rule 804(b)(1)

admits testimony where the opportunity and motive to develop it existed,

not merely where an actual examination or cross-examination took place.

438

This aspect of admissibility assures that strategic considerations, which

might counsel an attorney against conducting as thorough an examination at

the prior proceeding as he or she would conduct at trial, do not influence the

later admissibility of the evidence.

439

Therefore, where the initial inquiry

into the questioning that was actually conducted before the grand jury

reveals that something short of sufficient examination on the material issues

occurred, the second step is for the court to determine whether a “similar

motive” would have existed for examination, despite the lack of actual

questioning on the material issues.

440

This is a difficult inquiry that goes to the heart of what it means for the

prosecution to have a “similar motive” at the grand jury proceeding. As

Professor Michael Martin has explained, referring to the substantially

similar admissibility test promulgated by the Supreme Court in its initial

version of Rule 804(b)(1),

441

[T]he objective of the motive and interest test is to determine whether

there is any significant reason why facts relevant to the present inquiry . . .

would not have been elicited at the prior hearing. A “significant reason”

for these purposes would be one which would affect the conduct of the

examination by a reasonable attorney in the same circumstances. It is

unfair to hold a party to the former examination if no reasonable attorney

would be expected to have elicited the now-relevant facts; but if the

circumstances were such that those facts could have been brought out if

they were available, the present opponent can fairly be held.

442

With respect to grand jury testimony, strategic use of questioning is one

of the primary reasons why reasonable prosecutors do not elicit facts. This

434. See supra Part I.B.

435. See supra Part II.A.1.c.

436. See supra Parts I.D.2.a, I.D.2.b.ii; see also cases cited supra note 420.

437. See supra Part I.D.2.a.

438. See supra Part I.D.2.a.

439. See supra Part I.D.2.a.

440. See supra Part II.A.1.c.

441. See supra notes 100–01 and accompanying text.

442. Martin, supra note 4, at 558–59.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1267

Note argues, however, that strategic considerations are not “significant”

within the evidentiary scope of Rule 804(b)(1); hence, the “reasonable

attorney” test should not consider a prosecutor’s motive for examination at

the grand jury to be diminished when questioning was limited because of

prosecutorial strategy. A refinement of the reasonable attorney test is

needed that can determine whether a motive existed to elicit now-relevant

facts, but that avoids taking into consideration such things as strategic

limitation of questioning, policies favoring either the prosecution or the

defense, or judicial determinations concerning the merit of prior testimony.

In his Second Circuit panel opinion on remand from the Supreme Court

in United States v. Salerno, Judge Pratt reasoned that, if the inquiry into

whether the prosecution actually conducted a similarly motivated grand jury

examination on the material issues is inconclusive, then the second step is

for the court to objectively determine “whether a reasonable examiner under

the circumstances would have had a similar motive to examine the

witness.”

443

The purpose of this inquiry is to ensure “that the failure to

vigorously examine the witness—for tactical reasons or otherwise—does

not insulate the prior testimony from admission.”

444

So, in the test put

forward by the Second Circuit panel, the reasonableness determination, at

least in the abstract,

445

does not consider the strategic choices that actual

prosecutors are likely to make. The “similar motive” test for grand jury

testimony offered against the government could thus be restated as follows:

Considering the scope of the investigation and the information available to

the prosecution at the time of questioning, the court should determine

whether a reasonable prosecutor would have had a motive to challenge the

testimony with respect to the issues now relevant at trial, regardless of

whether any such challenge was forgone for strategic reasons or otherwise.

Alternatively, the test could be stated: Considering the scope of the

investigation and the information available to the prosecution at the time of

questioning, the court should determine whether a reasonable prosecutor,

proceeding as if the witness were testifying at trial, would have had a

motive to discredit the exculpatory testimony.

Professor Glen Weissenberger has noted that “[t]he critical issue raised

by Rule 804(b)(1) is whether to admit the evidence or completely sacrifice

the testimony of the [declarant]; consequently, only genuinely dissimilar

motives should result in exclusion.”

446

This understanding of Rule

804(b)(1) highlights the fact that the rule’s evidentiary function is to

provide needed information to fact-finders, and not merely to ensure strict

fairness to litigants.

447

In many grand jury situations, a prosecutor’s motive

to develop exculpatory testimony, although not as “intense” as it might be

443. Salerno II, 974 F.2d 231, 239 (2d Cir. 1992), vacated en banc sub nom. United

States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993); see also supra Part II.A.1.c.

444. Salerno II, 974 F.2d at 239; see also supra Part II.A.1.c.

445. The court did not clearly apply the test to its facts. See supra note 243 and

accompanying text.

446. Weissenberger, supra note 35, at 1102.

447. See supra Part I.C.1.

1268 FORDHAM LAW REVIEW [Vol. 79

at trial, would nonetheless not be “genuinely dissimilar” from the motive

the prosecution would have at trial.

448

Rather, it is simply that a low burden

and the nature of prosecutorial power in the grand jury leave the

prosecution with no urgent need to exercise its “motive.”

449

If strategic

considerations brought on by grand jury conditions were eliminated from

the “similar motive” test, Rule 804(b)(1)’s evidentiary purpose could be

better served by providing more information to the fact-finder without

sacrificing essential fairness to the government. After all, “[w]here [a]

party forgoes cross-examination, it is not unfair to make him or her suffer

the consequences.”

450

Furthermore, where the prosecution has obtained

grand jury testimony by granting immunity to the witness, it is foreseeable

that the witness might become “unavailable” at trial if immunity is not

extended, and, consequently, the grand jury testimony might be admissible

pursuant to Rule 804(b)(1). In the parallel situation concerning preliminary

hearing testimony, it has been suggested that the defense might have a

“motive” to cross-examine a preliminary hearing witness simply because it

is aware that the testimony might become admissible if the witness is

“unavailable” at trial.

451

If that is so, might not the prosecution have a

“motive” to examine an exculpatory grand jury witness to whom the

government has granted immunity simply because it understands that the

witness is likely to become “unavailable” if immunity is not extended to the

trial?

452

As it generally stands, there is a discontinuity between admissibility

determinations for preliminary hearing and grand jury testimony under Rule

804(b)(1).

453

The “reasonable examiner” test above, which does not take

into account the strategic decisions of examiners, seems already to be

applied by courts to preliminary hearing testimony that is offered against

the defendant.

454

But, in situations where exculpatory grand jury testimony

is offered against the government, courts have allowed prosecutors’

strategic choices to influence the admissibility determination, and some

have even favored the government by holding that the nature of grand jury

proceedings themselves precludes finding prosecutorial motive for

examination.

455

In both grand jury and preliminary hearing situations,

similar forces influence the extent to which an examiner is likely to

question a witness.

456

Before the grand jury, the government’s burden is

448. See, e.g., United States v. McFall, 558 F.3d 951, 963 (9th Cir. 2009) (arguing that,

although the prosecution may not have had “an identical quantum of motivation” to examine

the exculpatory witness before the grand jury, the district court nonetheless “erred in

concluding that the government’s respective motives were ‘completely different’” at the

grand jury and at trial).

449. See supra Part I.D.2.b.i; see also supra notes 233–34 and accompanying text.

450. Weissenberger, supra note 35, at 1097; see also supra note 136 and accompanying

text.

451. See supra notes 176–77 and accompanying text.

452. See supra notes 129–30. But see supra notes 173–75 and accompanying text.

453. See supra Part I.D.2.b.i.

454. See supra Part I.D.2.b.i.

455. See supra Parts I.D.2.b.i, II.A.

456. See supra Part I.D.2.b.i.

2010] THE ADMISSIBILITY OF GRAND JURY TESTIMONY 1269

low and it is often in the prosecution’s interest not to reveal all that it might

know about an investigation—not to “tip its hand”—by thoroughly

questioning an exculpatory witness when its burden has been met.

457

Similarly, the prosecution must meet a low burden at preliminary hearings

in criminal cases, so it is often not in the defense’s interest to discredit the

prosecution’s inculpatory evidence using means as aggressive as it would at

trial, where the prosecution’s higher burden favors the defense.

458

Yet,

despite the similarities between the factors influencing “motive” at these

two proceedings, courts have treated them differently.

459

Convincing policy arguments might be made for employing Rule

804(b)(1)’s “similar motive” test in such a way as to either support the

activities of law enforcement or protect the interests of defendants. For

instance, some argue that liberally admitting grand jury testimony against

the government would encourage prosecutors to expand the scope of grand

jury proceedings and treat them, at least as far as witness examination is

concerned, more like trials. This in turn would increase the burden on the

government with respect to conducting grand jury investigations and would

decrease the overall effectiveness of law enforcement.

460

It has also been

argued that admitting grand jury testimony against the government when

the witness is only realistically “unavailable” to the defense is a necessary

measure to counterbalance the prosecution’s greater power with respect to

obtaining evidence in the grand jury.

461

Such generalized policy

considerations, along with the strategic considerations discussed above, are

beyond the evidentiary scope of Rule 804(b)(1), however, and should not be

considered in the prior testimony admissibility analysis.

462

If the

reasonable examiner test that the Second Circuit panel described were

applied to both grand jury and preliminary hearing testimony as the sole

means by which prior testimony could be admitted, it would ensure that the

evidentiary purpose behind Rule 804(b)(1) was met in each instance. It

would prevent courts from basing admissibility decisions on before-the-fact

determinations of the truthfulness or accuracy of the testimony. It would

prevent courts that identify with the interests of either the government or

the defense from favoring one or the other in admissibility determinations.

It would screen “intensity” of motive from the “similar motive” inquiry and

place the focus instead on a party’s reasonable opportunity to develop facts

at the prior proceeding. Finally, it would prevent courts from considering

questioners’ strategic decisions in the admissibility determination. The

“reasonable examiner” test would direct courts instead to consider the

circumstances that prevailed at grand jury and preliminary hearing

proceedings—to consider what the attorneys knew at the time they

questioned their witnesses, and whether they possessed sufficient

457. See supra notes 167–69 and accompanying text.

458. See supra notes 150–54 and accompanying text.

459. See supra Part I.D.2.b.i.

460. See supra note 175 and accompanying text.

461. See cases cited supra note 425; see also supra Part I.D.2.b.i.

462. See supra Part II.A.1.b.

1270 FORDHAM LAW REVIEW [Vol. 79

information to recognize the witnesses’ testimony as adverse and therefore

discredit it.

ONCLUSION

U.S. Courts of Appeals applying Federal Rule of Evidence 804(b)(1)’s

“similar motive” test to grand jury testimony offered against the

government have based their admissibility determinations on different

factors common to grand jury examinations. As a result, a split has

developed between those circuit courts that have narrowly construed the

requirement and would rarely encounter circumstances that could satisfy

their stringent admissibility test, and those circuits that have taken a more

expansive view of prosecutorial motive and would presumptively admit

grand jury testimony against the government in most cases. The primary

factor resulting in the split is whether the court would consider a

prosecutor’s strategic use of limited questioning at the grand jury to bear

upon the prosecution’s “motive” for examination in the abstract. Neither

the narrow test, which considers such strategic use of questioning, nor the

broad test, which dismisses it, is true to the evidentiary purposes of Rule

804(b)(1). The admissibility inquiry is further complicated by a seemingly

contradictory interpretation of the “similar motive” test with respect to

preliminary hearing testimony offered against defendants. In those cases,

under circumstances analogous to those present in the grand jury setting,

courts usually have held preliminary hearing testimony admissible. If the

“reasonable examiner” test described by the Second Circuit panel on

remand from the Supreme Court in United States v. Salerno were adopted

with the explicit provision that strategic decisions to limit questioning in

both the grand jury and preliminary hearing contexts should not influence

courts’ “similar motive” determinations, several benefits would ensue.

Courts would have a more uniform and predictable standard for

determining the admissibility of grand jury testimony against the

government; and, the standard for grand jury testimony would parallel that

already employed for preliminary hearing testimony, where defendants’ low

motive to challenge witnesses due to the proceeding’s low burden of proof

does not bar admission of the testimony. Also, application of a uniform

“similar motive” test would allow prosecutors to more accurately predict

when exculpatory testimony uncovered in the grand jury might later

resurface at trial pursuant to Rule 804(b)(1). Finally, applying the

“reasonable examiner” test to grand jury testimony offered pursuant to Rule

804(b)(1) would ensure that courts do not resort to impermissible discretion

based upon the perceived merit of the contested testimony, and that they

remain within the evidentiary confines of the rule and do not consider such

extrinsic factors as adversarial fairness in the abstract or policy favoring

either the government or the defense.