Also known as: former testimonies · prior testimony
Written by attorneys · grounded in primary & secondary sources — see below
Testimony given as a witness at a trial, hearing, or lawful deposition in the current or a different proceeding. The exception applies when the declarant is unavailable and the testimony is offered against a party who had an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
Frank Fisher faced trial on assault charges after a bar fight. His counsel had cross-examined the victim at a preliminary hearing where the victim described the attack. The victim later moved abroad and ignored subpoenas despite the prosecution's diplomatic efforts to secure his return. The court admitted the preliminary hearing transcript because the victim remained unavailable after good-faith efforts.
Fatou Fall sued her former employer for wrongful termination. A coworker had given sworn deposition testimony about discriminatory remarks by the supervisor. The coworker died before trial. The court allowed the deposition transcript because the employer had attended the deposition and possessed the same motive to question the coworker about the supervisor's statements.
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Francesca Fiore sought damages after a car accident. A bystander had testified at an earlier administrative license hearing about the defendant's speed. The bystander could not be located despite reasonable search efforts. The court received the hearing transcript because the defendant had participated in the administrative proceeding with a comparable incentive to challenge the speed testimony.
Finn Fletcher stood trial for tax evasion. A bookkeeper had testified before the grand jury about hidden accounts. The bookkeeper invoked the Fifth Amendment at trial. The court excluded the grand jury transcript because the defense had no opportunity to cross-examine the bookkeeper during the ex parte grand jury session.
Faith Fitzgerald sued a contractor for defective construction. An inspector had given deposition testimony in a prior lawsuit by a neighboring homeowner about the same foundation flaws. The inspector suffered a stroke and could not testify. The court admitted the deposition because the contractor had attended and questioned the inspector with a similar motive to dispute the foundation defects.
Francois Fortier prosecuted a bribery case. A key aide had testified at an earlier civil deposition about cash payments. The aide refused to appear at the criminal trial despite a subpoena and contempt threats. The court rejected admission of the deposition because the prosecution failed to show exhaustive efforts to compel attendance beyond the initial subpoena.
The proponent must demonstrate that the declarant is absent and that reasonable means, including process or other efforts, failed to secure attendance or testimony. Mere incarceration outside the state does not suffice without good-faith attempts to produce the witness.
No. The rule requires only that the party had an opportunity and similar motive to develop the testimony by examination. Actual questioning is not necessary if the opportunity existed.
Yes, provided the proceeding qualifies as a lawful deposition or hearing and the opposing party had an opportunity and similar motive to develop the testimony. Formal subpoena authority and recording satisfy the lawful-deposition requirement even if the setting was inquisitorial.
The testimony does not violate the Clause if the defendant or counsel had an adequate opportunity to cross-examine when the testimony was given and the witness is unavailable despite bona fide efforts. A greater showing of unavailability is required in criminal cases.
…cases from the early 19th century that took a more stringent view of the right to confrontation than does the Court, prohibiting former testimony even if the witness was subjected to cross-examination. See ante , at 50 (citing Finn v. Commonwealth , 26 Va. 701, 708 (1827); State v. Atkins , 1 Tenn. 229 (Super. L. & Eq. 1807) ( per…