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United States v. Salerno - 505 U.S. 317, 112 S. Ct. 2503 (1992)


Fed. R. Evid. 804(b)(1) establishes an exception to the hearsay rule for former testimony. This exception provides that the following are not excluded by the hearsay rule if the declarant is unavailable as a witness: testimony given as a witness at another hearing if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.


The respondents were indicted on a variety of federal charges, including fraud and racketeering in connection with the allocation of construction contracts among a so-called "Club" of companies in exchange for a share of the proceeds. Witnesses DeMatteis and Bruno, owners of the Cedar Park Construction Corporation, testified before the grand jury under a grant of immunity that neither they nor Cedar Park had participated in the Club. At trial, however, the United States used other evidence to show that Cedar Park was a Club member. The respondents subpoenaed DeMatteis and Bruno, but they invoked their Fifth Amendment privilege against self-incrimination and refused to testify. Defendants sought to admit the transcripts of the witnesses' grand jury testimony under the hearsay exception of Fed. R. Evid. 804(b)(1) for former testimony of unavailable witnesses. The district court refused to admit the transcripts. The respondents were convicted, but on appeal, the appellate court reversed that decision holding that the District Court had erred in excluding the grand jury testimony. It ruled that, to maintain "adversarial fairness," Rule 804(b)(1)'s similar motive element should evaporate when the Government obtains immunized testimony in a grand jury proceeding from a witness who refuses to testify at trial.


Should the transcripts of the witnesses' grand jury testimony be admitted under the hearsay exception?




The United States Supreme Court reversed the appellate court's judgment. The transcripts could not be admitted under Fed. R. Evid. 804(b)(1), unless the government had a similar motive to develop the testimony, because Fed. R. Evid. 804(b)(1) did not suggest that former testimony could be admitted absent satisfaction of the Rule's elements, and the parties did not forfeit testimonial privileges. The court remanded the case for a determination as to whether the government had a similar motive for developing the witnesses' testimony.

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