Written by attorneys · grounded in primary & secondary sources — see below
An element of the former-testimony hearsay exception requiring that the party against whom the testimony is offered—or, in a civil case, that party's predecessor in interest—had an opportunity and similar motive to develop the testimony by examination in the prior proceeding.
Sources & Authorities
How it applies
Common Examples
2
Deposition Offered in Bad Faith Suit
Midnight Surety sues Frontier Claims for bad faith denial of coverage after a warehouse fire. In a related subrogation action Frontier Claims deposed its claims adjuster Mary on the fire investigation. Mary died before the bad faith trial. Midnight Surety offers the deposition transcript against Frontier Claims. Frontier Claims had examined Mary only to shift loss to a third-party arsonist and lacked comparable incentive to probe its own claims-handling decisions.
Grand Jury Testimony at Criminal Trial
The government offers grand jury testimony from two unavailable witnesses against the defendants at trial. The prosecution had examined the witnesses before the grand jury only to secure an indictment. At trial the defendants seek to use the same testimony. The prosecution lacked a similar motive to develop the testimony because its grand jury objective differed materially from its trial objective of proving guilt beyond a reasonable doubt.
Select any source to read its text and confirm it supports the definition.
Federal Rules
Casebooks
Course Outlines
United States v. DiNapoli8 F.3d 909 (2d Cir. en banc 1993)
Common questions
Frequently Asked
4
What must a party show to satisfy the similar-motive element of the former-testimony exception?+
The party against whom the testimony is offered must have possessed a comparable incentive to probe the declarant on the same subject matter for the same reasons that now matter at trial. Courts compare the litigation objectives and stakes in the two proceedings rather than requiring identical claims.
Supporting sources
Does factual overlap between proceedings automatically establish similar motive?+
No. Shared facts are relevant but insufficient when the party's incentive to challenge the testimony differs materially. A regulatory inquiry focused on aggregate compliance does not supply the same defensive posture as a civil suit seeking damages for a specific design defect.
Supporting sources
When does a predecessor in interest satisfy the opportunity-and-motive requirement in civil cases?+
A predecessor in interest must have had both the chance and a comparable incentive to examine the declarant on the precise issues now offered. The rule does not allow admission merely because some other party conducted cross-examination in the prior proceeding.
How do courts treat differences in the scope of questioning when assessing similar motive?+
Limited questioning in the prior proceeding signals a lack of similar motive when the omitted topics are central to the current case. If the earlier proceeding gave no practical reason to explore the precise issues now in dispute, the testimony fails the exception.
Supporting sources
580 F.2d 1179 (3d Cir. 1978)Evidence
…requirement of Rule 804. D. We turn now to the more difficult question: did Alvarez or a “predecessor in interest” have the “opportunity and similar motive to develop the testimony by direct, cross or redirect examination” as required by Rule 804(b)(1)? In rejecting the proffered evidence, the district court took a strict view of the new rule,…
EvidenceHearsay and circumstances of its admissibility · Statements that are not hearsayNEXTGENIntermediate