Federal Rule of Evidence 804(b)(1)'s 'Similar Motive' Test and the Admissibility of Grand Jury Testimony against the Government

58 Pages Posted: 6 Dec 2010  

Brandon Berkowski

Fordham University School of Law

Date Written: December 1, 2010

Abstract

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.

Keywords: 804(b)(1), similar motive, grand jury, former, prior, testimony, hearsay

Suggested Citation

Berkowski, Brandon, Federal Rule of Evidence 804(b)(1)'s 'Similar Motive' Test and the Admissibility of Grand Jury Testimony against the Government (December 1, 2010). Fordham Law Review, Vol. 79, No. 3, 2010. Available at SSRN: https://ssrn.com/abstract=1720577

Brandon Berkowski (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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