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In the context of Fed. R. Evid. 804(b)(1), similarity in the type of proceedings will typically support a conclusion that there was a similar motive to develop testimony. Where both proceedings are trials and the same matter is seriously disputed at both trials, it will normally be the case that the side opposing the version of a witness at the first trial had a motive to develop that witness's testimony similar to the motive at the second trial.
Plaintiff John Volland stood trial before a jury on the state charges of resisting a peace officer and simple battery where he testified at length about his version of events. A State Attorney cross-examined him. In 2013, plaintiff filed the present lawsuit charging the police officers of violating his federal constitutional rights and some related Illinois law rights. In 2014, plaintiff died of natural causes, and plaintiff’s sister, as executor of his estate, has continued the litigation in plaintiff’s stead. Volland’s estate moved to admit his testimony in the criminal trial as evidence in the trial of the present action. Defendants countered that plaintiff’s testimony at the criminal trial was hearsay not falling within an exception.
Should plaintiff Volland’s testimony in the criminal trial be admitted as evidence in the trial of the present action?
The court granted the motion to admit Volland’s prior testimony, holding that the testimony was admissible under Fed. R. Evid. 804(b)(1). According to the court, the State's stake in the criminal trial was entirely commensurate to defendants' current stake in the civil rights action, which arose from the same facts. Further, the State's cross-examination of Volland had objectives essentially identical to those in any examination that defendants hypothetically could conduct if Volland were still alive.