Also known as:similar motive · similarly motivated cross-examination · FRE 804(b)(1) · former testimony exception
Written by attorneys · grounded in primary & secondary sources — see below
A condition for admitting former testimony under the hearsay exception that the party against whom the testimony is offered had an opportunity and comparable incentive to examine the declarant on the same subject matter in the prior proceeding.
Sources & Authorities· 1 primary source
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Federal Rules
Course Outlines
How it applies
Common Examples
2
Design Defect Testimony Barred
Plains Development offers a deceased engineer's arbitration deposition to prove design defects against Premier Structures in a collapse suit. Premier Structures had examined the engineer only on scheduling and cost issues during the prior arbitration between it and the contractor. Because the arbitration never addressed safety standards or structural integrity, Premier Structures lacked a comparable incentive to probe those topics. The court excludes the transcript.
Ethics Hearing Testimony Admitted
The state offers a vendor's ethics-board testimony against procurement officer Daniel Ruiz in a bribery prosecution after the vendor is killed. Ruiz's counsel attended the board hearing and cross-examined the vendor on the cash payments and favoritism. The motive to undermine the vendor's account of the transactions matches the motive at the criminal trial. The court admits the transcript.
United States v. DiNapoli8 F.3d 909 (2d Cir. en banc 1993)
Common questions
Frequently Asked
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How does a court determine whether a party had similar motive to cross-examine in a prior proceeding?+
A court compares the party's incentive to challenge the testimony on the precise subject matter now offered, taking into account the nature of the proceedings, the issues actually litigated, and the potential impact on the party's position. Overlap in underlying facts alone does not suffice when the legal objectives differ materially.
Supporting sources
Does extensive cross-examination in the prior proceeding guarantee that similar motive existed?+
No. The rule requires a comparable incentive tied to the subject matter now in dispute, not merely that questioning occurred. When the prior proceeding addressed different claims or stakes, even thorough examination on other topics fails the test.
Supporting sources
Can testimony from an administrative or regulatory hearing satisfy the similar-motive requirement in a later civil trial?+
It can when the factual issues and the party's incentive to test the declarant's account align closely with the trial issues. Divergent purposes, such as regulatory compliance versus tort liability, usually show the motives are not similar.
Supporting sources
What happens when the party against whom the testimony is now offered was not a party to the prior proceeding?+
The testimony is inadmissible unless a predecessor in interest had the required opportunity and similar motive. A non-party generally lacks any opportunity to develop the testimony, defeating the exception.
Supporting sources
Does the Confrontation Clause impose an additional limit on similar-motive analysis in criminal cases?+
Yes. Even when evidentiary rules are satisfied, the defendant must have had a prior opportunity to cross-examine the declarant. A non-party's lack of participation in the earlier proceeding violates confrontation rights regardless of motive overlap.
Supporting sources
EvidenceHearsay and circumstances of its admissibility · Former testimony; depositionsUBEFoundational