OCTOBER TERM, 1991
Syllabus
UNITED STATES
v. SALERNO ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 91-872. Argued April 20, 1992-Decided June 19, 1992
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. The District Court
denied the respondents' request to admit the transcripts of
DeMatteis' and Bruno's grand jury testimony pursuant to Federal
Rule of Evidence 804(b)(1)-which permits admission of an
unavailable declarant's testimony from a former hearing if the
party against whom it is now offered had a "similar motive to
develop the testimony by direct, cross, or redirect
examination"-reasoning that a prosecutor's motive in questioning a
witness before the grand jury is different from his motive in
conducting the trial. The respondents were convicted, but the Court
of Appeals reversed, 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.
Held:
1. Former testimony may not be introduced under Rule 804(b)(1)
without a showing of "similar motive." Nothing in Rule 804(b)(1)
suggests that a court may admit former testimony absent
satisfaction of each of the Rule's elements. The respondents err in
arguing that the Rule contains an implicit limitation permitting
the "similar motive" requirement to be waived in the interest of
adversarial fairness. Also rejected is the respondents' argument
that the United States forfeited its right to object to the
testimony's admission when it introduced contradictory evidence
about Cedar Park. Here, the United States never revealed what
DeMatteis and Bruno said to the grand jury, but, rather, attempted
to show Cedar Park's involvement using other evidence. In
318
addition, the respondents mistakenly argue that adversarial
fairness prohibits the suppression of exculpatory evidence produced
in grand jury proceedings.
Dennis v.
United States,
384 U. S. 855,
distinguished. Pp. 320-324.
2. This case is remanded for consideration of whether the United
States had a "similar motive." Since the Court of Appeals
erroneously concluded that the respondents did not have to
demonstrate such a motive, it did not consider fully the parties'
arguments on this issue. Pp. 324-325.
937 F.2d
797 and
952 F.2d
623, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY,
and SOUTER, JJ., joined. BLACKMUN, J., filed a concurring opinion,
post, p. 325. STEVENS, J., filed a dissenting opinion,
post, p. 326.
James A. Feldman argued the cause for the United
States.
With him on the briefs were Solicitor General Starr, Assistant
Attorney General Mueller, and Deputy Solicitor General Bryson.
Michael E. Tigar argued the cause for respondents. With
him on the brief was
Gustave H. Newman. *
JUSTICE THOMAS delivered the opinion of the Court. Federal Rule
of Evidence 804(b)(1) states an exception to the hearsay rule that
allows a court, in certain instances, to admit the former testimony
of an unavailable witness. We must decide in this case whether the
Rule permits a criminal defendant to introduce the grand jury
testimony of a witness who asserts the Fifth Amendment privilege at
trial.
I
The seven respondents, Anthony Salerno, Vincent DiN apoli, Louis
DiNapoli, Nicholas Auletta, Edward Halloran, Alvin O. Chattin, and
Aniello Migliore, allegedly took part in the activities of a
criminal organization known as the
*Jed S.
Rakofffiled a brief for the New York
Council of Defense Lawyers as
amicus curiae urging
affirmance.
319
Genovese Family of La Cosa Nostra (Family) in New York City. In
1987, a federal grand jury in the Southern District of New York
indicted the respondents and four others on the basis of these
activities. The indictment charged the respondents with a variety
of federal offenses, including 41 acts constituting a "pattern of
illegal activity" in violation of the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U. S. C. § 1962(b).
Sixteen of the alleged acts involved fraud in the New York
construction industry in the 1980's. According to the indictment
and evidence later admitted at trial, the Family used its influence
over labor unions and its control over the supply of concrete to
rig bidding on large construction projects in Manhattan. The Family
purportedly allocated contracts for these projects among a
so-called "Club" of six concrete companies in exchange for a share
of the proceeds.
Much of the case concerned the affairs of the Cedar Park
Concrete Construction Corporation (Cedar Park). Two of the owners
of this firm, Frederick DeMatteis and Pasquale Bruno, testified
before the grand jury under a grant of immunity. In response to
questions by the United States, they repeatedly stated that neither
they nor Cedar Park had participated in the Club. At trial,
however, the United States attempted to show that Cedar Park, in
fact, had belonged to the Club by calling two contractors who had
taken part in the scheme and by presenting intercepted
conversations among the respondents. The United States also
introduced documents indicating that the Family had an ownership
interest in Cedar Park.
To counter the United States' evidence, the respondents
subpoenaed DeMatteis and Bruno as witnesses in the hope that they
would provide the same exculpatory testimony that they had
presented to the grand jury. When both witnesses invoked their
Fifth Amendment privilege against self-incrimination and refused to
testify, the respondents asked the District Court to admit the
transcripts of their
320
grand jury testimony. Although this testimony constituted
hearsay, see Rule 801(c), the respondents argued that it fell
within the hearsay exception in Rule 804(b)(1) for former testimony
of unavailable witnesses.
The District Court refused to admit the grand jury testimony. It
observed that Rule 804(b)(1) permits admission of former testimony
against a party at trial only when that party had a "similar motive
to develop the testimony by direct, cross, or redirect
examination." The District Court held that the United States did
not have this motive, stating that the "motive of a prosecutor in
questioning a witness before the grand jury in the investigatory
stages of a case is far different from the motive of a prosecutor
in conducting the triaL" App. to Pet. for Cert. 51a. A jury
subsequently convicted the respondents of the RICO counts and other
federal offenses.
The United States Court of Appeals for the Second Circuit
reversed, holding that the District Court had erred in excluding
DeMatteis' and Bruno's grand jury testimony.
937
F.2d 797 (1991). Although the Court of Appeals recognized that
"the government may have had no motive ... to impeach ... Bruno or
DeMatteis" before the grand jury, it concluded that "the
government's motive in examining the witnesses ... was irrelevant."
Id., at 806. The Court of Appeals decided that, in order to
maintain "adversarial fairness," Rule 804(b)(1)'s similar motive
element should "evaporat[eJ" when the Government obtains immunized
testimony in a grand jury proceeding from a witness who refuses to
testify at trial.
Ibid. We granted certiorari, 502 U. S.
1056 (1992), and now reverse and remand.
II
The hearsay rule prohibits admission of certain statements made
by a declarant other than while testifying at trial. See Rules
801(c) (hearsay definition), 802 (hearsay rule). The parties
acknowledge that the hearsay rule, standing by itself,
321
would have blocked introduction at trial of DeMatteis' and
Bruno's grand jury testimony. Rule 804(b)(1), however, establishes
an exception to the hearsay rule for former testimony. This
exception provides:
"The following are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
"(1) Former Testimony.-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."
We must decide whether the Court of Appeals properly interpreted
Rule 804(b)(1) in this case.
The parties agree that DeMatteis and Bruno were "unavailable" to
the defense as witnesses, provided that they properly invoked the
Fifth Amendment privilege and refused to testify. See Rule
804(a)(1). They also agree that DeMatteis' and Bruno's grand jury
testimony constituted "testimony given as ... witness[es] at
another hearing." They disagree, however, about whether the
"similar motive" requirement in the final clause of Rule 804(b)(1)
should have prevented admission of the testimony in this case.
A
Nothing in the language of Rule 804(b)(1) suggests that a court
may admit former testimony absent satisfaction of each of the
Rule's elements. The United States thus asserts that, unless it had
a "similar motive," we must conclude that the District Court
properly excluded DeMatteis' and Bruno's testimony as hearsay. The
respondents, in contrast, urge us not to read Rule 804(b)(1) in a
"slavishly literal fashion." Brief for Respondents 31. They contend
that "adversarial fairness" prevents the United States from relying
on the similar motive requirement in this case. We agree with the
United States.
322
When Congress enacted the prohibition against admission of
hearsay in Rule 802, it placed 24 exceptions in Rule 803 and 5
additional exceptions in Rule 804. Congress thus presumably made a
careful judgment as to what hearsay may come into evidence and what
may not. To respect its determination, we must enforce the words
that it enacted. The respondents, as a result, had no right to
introduce DeMatteis' and Bruno's former testimony under Rule
804(b)(1) without showing a "similar motive." This Court cannot
alter evidentiary rules merely because litigants might prefer
different rules in a particular class of cases. See
Green v.
Bock Laundry Machine Co., 490 U. S. 504, 524
(1989).
The respondents' argument for a different result takes several
forms. They first assert that adversarial fairness requires us to
infer that Rule 804(b)(1) contains implicit limitations. They
observe, for example, that the Advisory Committee Note to Rule 804
makes clear that the former testimony exception applies only to
statements made under oath or affirmation, even though the Rule
does not state this restriction explicitly. See Advisory
Committee's Notes on Fed. Rule Evid. 804, 28 U. S. C. App., p. 788,
subd. (b), except. (1). The respondents maintain that we likewise
may hold that Rule 804(b)(1) does not require a showing of similar
motive in all instances.
The respondents' example does not persuade us to change our
reading of Rule 804(b)(1). If the Rule applies only to sworn
statements, it does so not because adversarial fairness implies a
limitation, but simply because the word "testimony" refers only to
statements made under oath or affirmation. See Black's Law
Dictionary 1476 (6th ed. 1990). We see no way to interpret the text
of Rule 804(b)(1) to mean that defendants sometimes do not have to
show "similar motive."
The respondents also assert that courts often depart from the
Rules of Evidence to prevent litigants from presenting only part of
the truth. For example, citing
United States v.
323
Miller, 600 F.2d
498 (CA5 1979), the respondents maintain that, although parties
may enjoy various testimonial privileges, they can forfeit these
privileges by "opening the door" to certain subjects. In the
respondents' view, the United States is attempting to use the
hearsay rule like a privilege to keep DeMatteis' and Bruno's grand
jury testimony away from the jury. They contend, however, that
adversarial fairness requires us to conclude that the United States
forfeited its right to object to admission of the testimony when it
introduced contradictory evidence about Cedar Park.
This argument also fails. Even assuming that we should treat the
hearsay rule like the rules governing testimonial privileges, we
would not conclude that a forfeiture occurred here. Parties may
forfeit a privilege by exposing privileged evidence, but do not
forfeit one merely by taking a position that the evidence might
contradict. See 8 J. Wigmore, Evidence §2327, p. 636 (McNaughton
rev. 1961); M. Larkin, Federal Testimonial Privileges § 2.06, pp.
2-103, 2-104, 2-120 (1991). In
Miller, for example, the
court held that a litigant, "after giving the jury his version of a
privileged communication, [could not] prevent the cross-examiner
from utilizing
the communication itself to get at the
truth." 600 F. 2d, at 501 (emphasis added). In this case, by
contrast, the United States never presented to the jury any version
of what DeMatteis and Bruno had said in the grand jury proceedings.
Instead, it attempted to show Cedar Park's participation in the
Club solely through other evidence available to the respondents.
The United States never exposed the jury to anything analogous to a
"privileged communication." The respondents' argument, accordingly,
fails on its own terms.
The respondents finally argue that adversarial fairness may
prohibit suppression of exculpatory evidence produced in grand jury
proceedings. They note that, when this Court required disclosure of
a grand jury transcript in
Dennis v.
United States,
384 U. S. 855
(1966), it stated that "it is rarely justifiable for the
prosecution to have exclusive access" to
324
relevant facts.
Id., at 873. They allege that the United
States nevertheless uses the following tactics to develop evidence
in a one-sided manner: If a witness inculpates a defendant during
the grand jury proceedings, the United States immunizes him and
calls him at trial; however, if the witness exculpates the
defendant, as Bruno and DeMatteis each did here, the United States
refuses to immunize him and attempts to exclude the testimony as
hearsay. * The respondents assert that dispensing with the "similar
motive" requirement would limit these tactics.
We again fail to see how we may create an exception to Rule
804(b)(1). The
Dennis case, unlike this one, did not involve
a question about the admissibility of evidence. Rather, it
concerned only the need to disclose a transcript to the defendants.
See 384 U. S., at 873. Moreover, in
Dennis, we did not hold
that adversarial fairness required the United States to make the
grand jury transcript available. Instead, we ordered disclosure
under the specific language of Federal Rule of Criminal Procedure
6(e). See 384 U. S., at 869-870, 872. In this case, the language of
Rule 804(b)(1) does not support the respondents. Indeed, the
respondents specifically ask us to ignore it. Neither
Dennis
nor anything else that the respondents have cited provides us with
this authority.
B
The question remains whether the United States had a "similar
motive" in this case. The United States asserts that the District
Court specifically found that it did not and that we should not
review its factual determinations. It also argues that a prosecutor
generally will not have the same motive to develop testimony in
grand jury proceedings as he does at trial. A prosecutor, it
explains, must maintain
*The respondents also suggest that, in the event that a witness
chooses to testify at trial without immunity, the United States can
impeach him with his grand jury testimony. See Fed. Rules Evid.
607, 801(d)(1)(A).
325
secrecy during the investigatory stages of the criminal process
and therefore may not desire to confront grand jury witnesses with
contradictory evidence. It further states that a prosecutor may not
know, prior to indictment, which issues will have importance at
trial and accordingly may fail to develop grand jury testimony
effectively.
The respondents disagree with both of the United States'
arguments. They characterize the District Court's ruling as one of
law, rather than fact, because the District Court essentially ruled
that a prosecutor's motives at trial always differ from his motives
in grand jury proceedings. The respondents contend further that the
grand jury transcripts in this case actually show that the United
States thoroughly attempted to impeach DeMatteis and Bruno. They
add that, despite the United States' stated concern about
maintaining secrecy, the United States revealed to DeMatteis and
Bruno the identity of the major witnesses who testified against
them at trial.
The Court of Appeals, as noted, erroneously concluded that the
respondents did not have to demonstrate a similar motive in this
case to make use of Rule 804(b)(1). It therefore declined to
consider fully the arguments now presented by the parties about
whether the United States had such a motive. Rather than to address
this issue here in the first instance, we think it prudent to
remand the case for further consideration. Cf.
Denton v.
Hernandez, 504
U. S. 25, 32-35 (1992).
It is so ordered.
JUSTICE BLACKMUN, concurring.
I join the Court's opinion with the understanding that it does
not pass upon the weighty concerns, expressed by JusTICE STEVENS,
underlying the interpretation of Federal Rule of Evidence
804(b)(1)'s similar-motive requirement. The District Court appeared
to hold
as a matter of law that "the motive of a prosecutor
in questioning a witness before
326
the grand jury in the investigatory stages of a case is far
different from the motive of a prosecutor in conducting the trial."
App. to Pet. for Cert. 51a. Because "similar motive" does not mean
"identical motive," the similar-motive inquiry, in my view, is
inherently a
factual inquiry, depending in part on the
similarity of the underlying issues and on the context of the grand
jury questioning. It cannot be that the prosecution either
always or
never has a similar motive for questioning
a particular witness with respect to a particular issue before the
grand jury as at trial. Moreover, like other inquiries involving
the admission of evidence, the similar-motive inquiry appropriately
reflects narrow concerns of ensuring the reliability of evidence
admitted at trial-not broad policy concerns favoring either the
Government in the conduct of grand jury proceedings or the
defendant in overcoming the refusal of other witnesses to testify.
Because this case involves factual issues unusual in complexity and
in number and because neither the District Court nor the Court of
Appeals apparently engaged in the type of factual inquiry
appropriate for resolution of the similar-motive inquiry, I join
the majority in remanding the case for further consideration.
JUSTICE STEVENS, dissenting.
Because I believe that the Government clearly had an
"opportunity and similar motive" to develop by direct or
crossexamination the grand jury testimony of Pasquale Bruno and
Frederick DeMatteis, I would affirm the judgment of the Court of
Appeals on the ground that the transcript of their grand jury
testimony was admissible under the plain language of Federal Rule
of Evidence 804(b)(1). As the Court explains,
ante, at 319,
the grand jury testimony of Bruno and DeMatteis was totally
inconsistent with the Government's theory of the alleged RICO
conspiracy to rig bids on large construction projects in Manhattan.
Bruno and DeMatteis were principals in Cedar Park Construction
Corporation
327
(Cedar Park), which, according to the Government, was a member
of the so-called "Club" of concrete companies that submitted rigged
bids on construction projects in accordance with the orders of the
Genovese Family of La Cosa Nostra. But notwithstanding the fact
that they had been given grants of immunity, Bruno and DeMatteis
repeatedly testified before the grand jury that they had not
participated in either the Club or the alleged bid-rigging
conspiracy. As the Court of Appeals explained, Cedar Park was "one
of the largest contractors in the metropolitan New York City
concrete industry," and it is arguable that without Cedar Park's
participation, "there could be no 'club' of concrete contractors."
937 F.2d
797, 808 (CA2 1991). And without the "Club," the allegations of
fraud in the construction industry-which "formed the core of the
RICO charges"-"simply dissolv[e]."
Ibid.
It is therefore clear that before the grand jury the Government
had precisely the same interest in establishing that Bruno's and
DeMatteis' testimony was false as it had at trial. Thus, when the
prosecutors doubted Bruno's and DeMatteis' veracity before the
grand jury-as they most assuredly didthey unquestionably had an
"opportunity and similar motive to develop the testimony by direct,
cross, or redirect examination" within the meaning of Rule
804(b)(1).1
The Government disagrees, asserting that it "typically does not
have the same motive to cross-examine hostile witnesses in the
grand jury that it has to cross-examine them at trial." Brief for
United States 11. This is so, the Gov-
1 Rule 804(b)(1) provides:
"Hearsay exceptions.-The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
"(1) Former Testimony.-Testimony given as a witness at another
hearing of the same or a different proceeding, or in a deposition
taken in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now offered,
or, in a civil action or proceeding, a predecessor in interest, had
an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination."
328
ernment maintains, because (1) cross-examining the witness might
indirectly undermine the secrecy of the grand jury proceedings,2
(2) the Government might decide to discredit the witness through
means other than cross-examination, and (3) the issues before the
grand jury are typically quite different from those at trial. See
id., at 11-14; Reply Brief for United States 9-12. In my
view, the first two reasonseven assuming that they are true-do not
justify holding that the Government lacks a "similar motive" in the
two proceedings. And although the third reason could justify the
conclusion that the Government's motives are not "similar," it is
not present on the facts of this case.
Even if one does not completely agree with Wigmore's assertion
that cross-examination is "beyond any doubt the greatest legal
engine ever invented for the discovery of truth,"3 one must admit
that in the Anglo-American legal system cross-examination is the
principal means of undermining the credibility of a witness whose
testimony is false or inaccurate.4 For that reason, a party has a
motive to
2 "If the government exposes the extent of its knowledge to an
individual who, by his willingness to commit perjury, has shown
himself to be allied with the investigation's targets, the effect
may be to provide information to the targets that can be used to
threaten witnesses, destroy evidence, fabricate a defense, or
otherwise obstruct the investigation." Brief for United States
12.
35 J. Wigmore, Evidence § 1367, p. 32 (J. Chadbourn rev.
1974).
4 Indeed, the lack of an opportunity to cross-examine the absent
declarant has been the principal justification for the
Anglo-American tradition of excluding hearsay statements. See,
e. g., E. Cleary, McCormick on Evidence §245, p. 728
(3d ed. 1984); 5 Wigmore, § 1367, at 32. This concern is
diminished, however, when the party against whom the hearsay
statement is offered had an opportunity to cross-examine the absent
declarant at the time the statement was made. Accordingly, the
common law developed an exception to the hearsay rule that
permitted the introduction of prior testimony if the opponent had
an adequate opportunity to crossexamine the declarant. See,
e. g., id., § 1386, at 90. Rule 804(b)(1) codified,
with a few changes, that common-law rule. See Advisory Committee's
Notes on Fed. Rule Evid. 804(b)(1), 28 U. S. C. App., pp.
788-789.
329
cross-examine any witness who, in her estimation, is giving
false or inaccurate testimony about a fact that is material to the
legal question at issue in the proceeding.
Of course, the party might decide-for tactical reasons or
otherwise-not to engage in a rigorous cross-examination, or even in
any cross-examination at all. 5 In such a case, however, I do not
believe that it is accurate to say that the party lacked a similar
motive to cross-examine the witness; instead, it is more accurate
to say that the party had a similar motive to cross-examine the
witness (i.
e., to undermine the false or misleading
testimony) but chose not to act on that motive. Although the Rules
of Evidence allow a party to make that choice about whether to
engage in crossexamination, they also provide that she must accept
the consequences of that decision-including the possibility that
the testimony might be introduced against her in a subsequent
proceeding.6
Thus neither the fact that the prosecutors might decline to
cross-examine a grand jury witness whom they fear will talk to the
target of the investigation nor the fact that they
5 For example, the party might not want to run the risk of
appearing to harass or upset a vulnerable witness-such as a young
child or the victim of a terrible crime-with rigorous
cross-examination if there are other, less confrontational means of
undermining the suspect testimony.
6 As the Advisory Committee explained, the question whether
prior testimony should be admitted is, in essence, the question
"whether fairness allows imposing, upon the party against whom now
offered, the handling of a witness on the earlier occasion."
Id., at 788. When, as in this case, the testimony is offered
against the party by whom it was previously offered, the party
obviously did not have an opportunity to develop the testimony
through cross-examination. But, the Advisory Committee recognized,
the opportunity to engage in "direct and redirect examination of
one's own witness [is] the equivalent of cross-examining an
opponent's witness."
Id., at 789. In either case, as long as
the party had a similar motive to develop the testimony in the
prior proceeding, there is no unfairness in requiring the party
against whom the testimony is now offered to accept her prior
decision to develop or not develop the testimony fully.
Ibid.
330
might choose to undermine the witness' credibility other than
through rigorous cross-examination alters the fact that they had an
opportunity and similar motive to challenge the allegedly false
testimony through questioning before the grand jury. Although those
might be reasons for declining to take advantage of the opportunity
to cross-examine a witness, neither undermines the principal motive
for engaging in cross-examination, i.
e., to shake the
witness' allegedly false or misleading testimony. Indeed, other
courts have found the "opportunity and similar motive" requirement
of Rule 804(b)(1) satisfied-and hence the prior testimony
admissible in a subsequent trial-in many similar situations.7
That leaves the Government's third reason, its contention that
it lacks a similar motive to question grand jury wit-
7 See,
e. g., United States v.
Miller, 284 U. S. App. D. C. 245, 258,
904
F.2d 65, 68 (1990) (prior grand jury testimony admissible
against the Government because "as several circuits have
recognized, the government had the same motive and opportunity to
question [the witness] when it brought him before the grand jury as
it does at trial. ... Before the grand jury and at trial, [the
witness'] testimony was to be directed to the same issue-the guilt
or innocence of [the defendants]");
United States v.
Pizarro, 717 F.2d
336, 349-350
(CA7 1983) (initial trial testimony of one
defendant which exculpated the second defendant was admissible
during the retrial of the second defendant even though the
Government may have declined to cross-examine the first defendant
about an issue for fear that it would have resulted in a severance
of the trials of the two defendants);
United States v.
Poland, 659 F.2d
884, 895-896
(CA9) (identification testimony of witness
at suppression hearing admissible in subsequent trial because
defendant would have a similar motive at both proceedings to show
that the identification was unreliable), cert. denied, 454 U. S.
1059 (1981);
Glenn v.
Dallman, 635
F.2d 1183, 1186-1187
(CA6 1980) (identification
testimony of eyewitness at preliminary hearing admissible against
defendant at trial even though defendant declined to cross-examine
the witness fully), cert. denied, 454 U. S. 843 (1981);
United
States v.
Zurosky, 614 F. 2d 779, 791-793
(CA11979) (suppression hearing testimony of codefendant
which inculpated defendant admissible against defendant at trial
even though defendant declined to cross-examine codefendant at the
hearing), cert. denied, 446 U. S. 967 (1980).
331
nesses because the issues before the grand jury may not be the
same issues that are important at trial. If that were true in a
particular case, I would agree that the Government lacked a similar
motive for developing the witness' grand jury testimony. Because
the scope of questioning is necessarily limited by the scope of the
legal and factual issues in a given proceeding, a party has little
motive, and indeed may not be permitted, to ask questions about
other issues. Thus if those other issues become important in a
subsequent proceeding, the testimony from the prior proceeding may
properly be excluded on the ground that the party against whom it
is offered lacked a similar motive for developing the testimony at
the prior proceeding.8
That did not occur in this case, however. After reviewing the
sealed transcripts of Bruno's and DeMatteis' grand jury testimony,
the Court of Appeals concluded that "[v]ery generally stated, their
grand jury testimony denied any awareness of, let alone
participation in," the "Club" of concrete contractors, the
existence of which was crucial to the RICO counts dealing with
fraud in the construction industry. 937
8 As Wigmore explained, the common law required identity of
issues as a means of ensuring that the cross-examination in the two
proceedings would have been directed at the same material points. 5
Wigmore, § 1386, at 90. Rule 804(b)(1) slightly modified the prior
testimony exception to the hearsay rule by substituting the
"opportunity and similar motive" requirement for the
identity-of-issues requirement. The drafters of the Rule reasoned
that "[s]ince identity of issues is significant only in that it
bears on motive and interest in developing fully the testimony of
the witness, expressing the matter in the latter terms is
preferable." Advisory Committee's Notes on Rule 804(b)(1), at 789.
Nevertheless, for the reasons discussed in the text, "[i]n
determining whether a similar motive to develop the testimony
existed at the time of the elicitation of the former testimony the
courts will search for some substantial identity of issues." 11 J.
Moore & H. Bendix, Moore's Federal Practice § 804.04[3], p.
VIII -266 (2d ed. 1989).
332
F. 2d, at 808.9 Moreover, the transcripts reveal that the
prosecutors did challenge some of the witnesses' denials of
knowledge of criminal activity by questioning which included
probing the basis of their statements and confronting them with
contrary statements from other people.
I am therefore satisfied that the Government had an "opportunity
and similar motive" to develop the grand jury testimony of
witnesses Bruno and DeMatteis; consequently, the transcript of that
testimony was admissible against the Government at respondents'
trial under Rule 804(b)(1). For that reason, I would affirm the
judgment of the Court of Appeals.
9 "Indeed," the Court of Appeals explained, "the central
importance of the 'club's' existence is probably why the government
felt obligated to identify Bruno and DeMatteis as sources of
exculpatory testimony under
Brady v.
Maryland[,
373 U. S. 83
(1963)]." 937 F. 2d, at 808.
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