See also: CROSS-EXAMINATION; GRAND JURIES; LEADING; PRELIMINARY HEARINGS; REDIRECT EXAMINATION; RECROSS EXAMINATION; SUPPRESSION HEARINGS.

Former Testimony Exception

Most courts deem sworn prior testimony to be hearsay, but admissible under an exception.{footnote} [4088]  FRE 804(b)(1).
            State v. Dick, 271 N.E.2d 797 (Ohio 1971).
            Cf. Wigmore § 1370 (viewing prior testimony as non-hearsay).  {/footnote}
These courts vary as to the requirements for the admissibility of prior testimony.

Identity of Parties and Issues.  Traditionally, prior testimony was only admitted if all of the parties to the prior proceeding were parties to the later proceeding and vice versa.{footnote}Bulk Transportation, Inc. v. Louisiana Public Serv. Commission, 209 So. 2d 4 (La 1968)(G).  {/footnote}  Most jurisdictions have relaxed this requirement in one way or another.  Under the federal rules, it is required that a party against whom the testimony is offered was a party (or in privity with a party) to the earlier proceeding and had an opportunity and a similar motive to question the witness that they now have.{footnote} [4090]FRE 804(b)(1); Glenn v. Dallman, 635 F.2d 1183, 1186-87 (6th Cir. 1980)(eyewitness identification testimony at preliminary hearing admissible at trial even though defendant chose not to cross-examine witness at hearing); United States v. Pizarro, 717 F.2d 336 (7th Cir. 1983)(reversing trial court’s exclusion of co-defendant’s testimony from prior trial, offered by defense, where government refrained from thorough cross-examination at prior trial for strategy reasons).
            CHECK Kentucky v. Stincer, 482 U.S. 730, 739 (1987); Delaware v. Fensterer, 474 U.S. 15, 20 (1985); United States v. McDonald, 837 F.2d 1287, 1292-93 (5th Cir. 1988).{/footnote}   That different counsel were used is irrelevant,{footnote}United States v. Amaya, 533 F.2d 188 (5th Cir. 1976)(G).  {/footnote} as is the fact that the adverse party was unrepresented at the former proceedings.{footnote} [4092]People v. Hunley, 21 N.W.2d 923, 924-25 (Mich. 1946).{/footnote}  In the state courts, the traditional requirement of complete identity has been relaxed, permitting testimony to be introduced against those in privity with a party to the former proceeding and requiring only substantial identity of the parties.  The trend among the states is to admit prior testimony whenever the adverse party in the prior proceeding had an opportunity and a similar motive to cross-examine the witness.{footnote} [4093]Cal. § 1291 (3); Tyler v. State, 342 Md. 766, 774, 679 A.2d 1127 (1996); Stone v. State, 534 P.2d 1022 (Wash. 1975)(G); Cox v. Selover, 213 N.W. 902 (Minn. 1927) (guarantor–maker of note)(G); Bartlett v. Kansas City Public Svc. Co., 100 S.W.2d 740 (Mo. 1942) (husband-wife){/footnote} 

Perhaps the most important factor in determining whether a party had a sufficiently similar motive or interest in cross-examining a witness is whether the issues in the two proceedings are similar.{footnote} [4094]FRE 804(b)(1); Cal. § 1291; United States v. Wingate, 520 F.2d 309, 316 (2d Cir. 1975); United States v. Taplin, 954 F.2d 1256, 1259 (6th Cir. 1992)(must be "substantial identity of issues"); United States v. Miller, 904 F.2d 65, 68 (D.C. Cir. 1990)(finding abuse of discretion in exclusion of grand jury testimony offered by defendant where government had similar motive to examine witness because issue before grand jury and before trial court was the same: the defendant’s guilt or innocence).{/footnote} 

While the adverse party must have had a "similar" motive to cross-examine the witness, "similar" has been held not to mean "identical."{footnote} [4095]Murray v. Toyota Motor Distribs., Inc., 664 F.2d 1377, 1379 (9th Cir. 1981).{/footnote}

Proceedings to Which Exception Applies.  Prior testimony must have been under oath and there must have been an opportunity to cross-examine the testifying witness.  Some courts have held that testimony before a grand jury is not admissible under this exception,{footnote}United States v. Donlon, 909 F.2d 650 (1st Cir. 1990).

CHECK People v. Lint, 182 Cal. App. 2d 402 (1960).

{/footnote} while other courts have disagreed.{footnote}United States v. Henry, 448 F. Supp. 819 (D.N.J. 1978).
            See also United States v. Klauber, 611 F.2d 512 (4th CIr. 1979)(noting that disctrict court "might" have admitted grand jury testimony under this exception).

            {/footnote}  It has also been held that testimony at coroner’s inquests is not admissible under this exception.{footnote}People v. Lint, 182 Cal. App. 2d 402 (1960).{/footnote} 

See also GRAND JURIES. 

Unavailability.  In order to introduce prior testimony, the proponent must show that the witness is "unavailable" to present live testimony.{footnote}FRE 804(b)(1); Dear v. Chicago Transit Authority, 72 Ill. App. 3d 729, 391 N.E.2d 119 (1st Dist. 1979).{/footnote}  No attempt to take the declarant’s deposition is required.{footnote}FRE 804(a)(5).{/footnote}  See UNAVAILABILITY. 

Procedure.  Under the federal rules, deposition testimony may be offered by any party, not just the party who took the deposition.  The procedure in some courts is that the party may not offer a deposition they did not take unless the party which took the deposition indicates on the record that it does not intend to introduce it.{footnote}LeBrecht v. Tuli, 130 Ill. App. 3d 457, 473 N.E.2d 1322 (4th Dist. 1985).{/footnote}

Public Records Exception

Testimony in another lawsuit has been held not admissible under the hearsay exception for public records.{footnote} [4102]Carter v. Burch, 34 F.3d 257 (4th Cir. 1994)(testimony in habeas proceeding inadmissible in civil rights case).{/footnote}

Unavailability of a Transcript

Where a transcript is not available, prior testimony may be offered through the testimony of a reliable person, such as the presiding judge, who heard the prior testimony.{footnote}State v. Ortego, 157 P.2d 320 (Wash. 1945)(G).{/footnote}  The affidavit of an attorney who was present at the earlier proceeding has also been allowed.{footnote}Commonwealth v. Santosuosso, 23 Mass. App. 310, 501 N.E.2d 1186 (1986).{/footnote}

Judicial Notice

Courts have sometimes allowed judicial notice to be taken as to testimony in another case.{footnote}Anderson v. Cramlet, 789 F.2d 840 (10th Cir. 1986); United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977)(testimony before same judge in related case){/footnote}  See also COURT RECORDS–Judicial Notice; JUDICIAL NOTICE.
 
Admissions [West sec. 243(6)]