Also known as: similar motives
Written by attorneys · grounded in primary & secondary sources — see below
A requirement in the former testimony hearsay exception that the party against whom the testimony is offered must have possessed an opportunity and comparable incentive to examine the declarant on the relevant subject matter during the prior proceeding.
Sasha Stone and other farmers sued Solstice Ventures after contaminated water damaged their crops. In an earlier insurance arbitration, an agronomist testified about soil tests and causation while Solstice cross-examined her. The agronomist died before trial. The court admitted the arbitration transcript because Solstice had the same incentive to discredit the causation testimony in both the coverage dispute and the product liability action.
Sean Steele and other defendants faced RICO charges after a warehouse scheme. Two witnesses had given exculpatory testimony before the grand jury. At trial the witnesses invoked the Fifth Amendment. The court excluded the grand jury transcripts because the prosecution's investigatory purpose at the grand jury stage differed from its motive at trial to prove the elements of the offenses beyond a reasonable doubt.
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Courts examine similarity of issues, stakes, and parties. When the prior and current proceedings involve the same factual questions and comparable incentives to challenge the witness on those questions, the similar-motive requirement is usually satisfied.
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No. The rule requires only that the party against whom the testimony is now offered, or its predecessor in interest in a civil case, had an opportunity and similar motive to examine the witness on the subject matter at issue.
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The prosecution's motive before the grand jury was investigatory and focused on developing leads, while its motive at trial was to prove guilt beyond a reasonable doubt. Those differing objectives meant the government lacked a similar motive to develop the witnesses' testimony.
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Yes, when the factual issues overlap and the party had a comparable incentive to probe the witness on those issues. Divergent legal theories or remedies alone do not defeat similarity if the examination tested the same core facts.
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…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,…