by Rahul Hari*

Can the exculpatory testimony of a witness before a grand jury be entered against the government under the “Former Testimony” exception to the ban on hearsay? Rahul Hari (’16) examines this question, presented at the 2015 National Moot Court Competition. For exculpatory testimony provided by a witness before the grand jury to be admissible at a subsequent trial in which the same witness is no longer available to testify, the proponent of that evidence must show that the prosecutor had a similar motive in developing that witness’s testimony at the grand jury stage as she would have had if the witness were now available to testify at trial. This Contribution argues that the broad interpretation of “similar motive,” as employed by a majority of the Circuit Courts of Appeals, adheres to the text of the Federal Rules of Evidence, more accurately captures the multiple motives a prosecutor might have in questioning a witness, and protects against prosecutorial abuse.

In the grand jury room, the prosecutor reigns sovereign. She has the authority to subpoena documents, call summary witnesses, and question targets without the presence of defense counsel. But what happens when that grip loosens; when a witness offers testimony that exculpates the prosecutor’s intended target? Fast-forward to trial, when defense counsel attempts to admit the testimony under the Former Testimony exception to the hearsay rule, and the prosecutor is left making a strange argument: she is not the person she was in the grand jury room.

The “Former Testimony” exception to the ban on hearsay mandates that the proponent of the evidence prove the statements were made by an unavailable declarant, were elicited at a trial or hearing under oath, and that the party against whom the testimony is offered had “an opportunity and similar motive to develop the testimony by direct, cross-, or redirect examination.”2 The critical element is the last. In order for grand jury statements to be admissible, defense counsel has to show that the prosecutor had a similar motive to develop the witness’s testimony in the grand jury room to the motive she would have had if the witness had been available to testify at trial.3 Like any good legal controversy, neither the rule nor the Committee Commentary accompanying it offers much clarity on what proving a “similar motive” requires.4 Nonetheless, the Supreme Court recognized that the exception does not categorically prohibit the admission of prior grand jury testimony against the government.5 Therefore, the question becomes: when is the exception’s essential element met by exculpatory grand jury statements?


Courts remain divided on how best to approach the question.6 The imbalance in the Circuit split is telling. The Fourth, Fifth, Sixth, Ninth, and the D.C. Circuits have all either explicitly endorsed or implicitly adopted a broader interpretation of the “similar motive” requirement of Rule 804(b)(1).7 This majority view, that exculpatory grand jury testimony meets the similar motive requirement unless a narrow set of factors indicates otherwise, best comports with both the text and the rationale for the hearsay exception.

At common-law, before former sworn statements could be considered by the finder of fact, the proponent of the evidence had to meet a very strict standard: the issues in contention had to be the same and a privity of relationships had to be shown.8 In adopting the Federal Rules of Evidence in 1972, Congress did away with such a formalistic approach to the exception. Indeed, the Advisory Committee was concerned that a strict approach bound the hands of the gatekeeper assessing the reliability of out of court statements.9 The codified exception was always intended to water down the admissibility requirements, not match them.10 Rather than demanding that the issues between the testimony in question and the issues at trial mirror one another, the text of the rule only requires that the parties have similar motives.11

In line with a straightforward reading of the rule and an understanding of the Committee’s intent to create more flexible admissibility standards for sworn testimony, the bulk of Circuits have espoused a reading of the exception first promulgated by the D.C. Circuit in United States v. Miller.12 Under this interpretation, if exculpatory evidence comes out of a grand jury proceeding, the court presumes that at a “high level of generality” the prosecutor was acting with the same motive she should have come trial: the pursuit of the truth and the conviction of the criminal defendant.13 This standard recognizes that moment to moment (just like at trial), the prosecutor may have multiple motives; reducing witness credibility or fulfilling the investigative function of a grand jury proceeding as examples. But the “high level of generality” benchmark appreciates that the existence of other motives does not preclude the presence of those a prosecutor carries through to trial, including discrediting the exculpatory witness in order to preserve her case.


There are three chief critiques to the majority view on 804(b)(1). None have bite. First, those opposed to the D.C. Circuit’s formulation argue that the “high level” standard makes exculpatory grand jury testimony presumptively admissible, putting the burden on the opponent of the evidence to show that the hearsay elements are not met rather than on the proponent to show that they are.14 This, they argue, flips application of hearsay exceptions on its head. Under the Federal Rules of Evidence, after all, the party trying to admit evidence under a hearsay exception must show to the gatekeeper an exception’s elements are fulfilled by a preponderance of the evidence. This critique misses the point of the “high level of generality” test. It does not make the evidence presumptively admissible, it just holds that a single element of the three- element admissibility inquiry is met unless proven otherwise. The proponent of the evidence must still show that the testimony was developed under oath and that the witness is unavailable within the meaning of Rule 804.15 Both of these elements must be proven to the judge to a Rule 104 preponderance standard.16

The second critique has gained more popularity amongst supporters of limiting the exception. They argue that by conflating the investigatory and indictment roles of the grand jury, the broader reading of the exception puts an added burden on prosecutors, limiting their efficacy.17 Imagine a prosecutor involved in a budding investigation. She empanels a grand jury, starts subpoenaing documents, and begins calling witnesses. If a witness gives testimony that exculpates the target of the investigation, the prosecutor could impeach the witness (if she even has impeachment testimony hand at such an early stage) and risk the witness leaving the grand jury to straighten the story with the investigation’s target.18 Or, the prosecutor could let the testimony stand unchallenged to protect the integrity of the nascent prosecution and risk losing at trial should the testimony come in under Rule 804. If the testimony does in fact come in under Rule 804, the prosecutor has missed the boat in terms of cross-examination given that the exculpating witness is no longer present for questioning.

The prosecutor is faced with a tough strategic decision. So what? If the result of that decision is that the prosecutor does not challenge the testimony of exculpatory grand jury witnesses, she “must accept the consequences of that decision.”19 After all, our criminal justice system does not afford defendants remedy when their lawyers make poor strategic decisions.20 Just because a prosecutor is facing a “Sophie’s Choice,” does not mean the elements of admissibility go unmet. As Justice Stevens put it,

[N]either the fact that the prosecutors might decline to cross-examine . . . nor the fact that they might choose to undermine the witness’s credibility other than through rigorous cross-examination alters the fact that they had an opportunity and a similar motive to challenge the allegedly false testimony before the grand jury.21

The rule only requires that motive and opportunity be present, not that the prosecutor exercise either.

And it is not that prosecutors are left with no tools at trial with which to challenge the unavailable witnesses. The rules themselves have a built in protection for parties wishing to impeach the testimony of hearsay declarants: Rule 806.22 Under this Rule, a party may offer impeachment evidence against a hearsay declarant in the same manner they would offer such evidence against a live witness. If a prosecutor so fears the damage of an absent witness’s exculpatory testimony, she is free to question the speaker’s reliability.

The final critique of the more natural reading of Rule 804(b)(1) is the conception that adopting a broader interpretation lengthens the grand jury proceeding. Because the prosecutor cannot predict which witnesses will not be available, if she decides to cross-examine she will be forced to cross every single witness – drawing out a criminal justice process already too sluggish.23 This notion is a silly one. Six Circuits already employ the rule and criminal justice has not come to a grinding halt in any of them. Even if this empirical proof was unavailable, it stands to reason that a prosecutor would feel obligated to draw out any one witness’s questioning only when that witness offered exculpatory evidence – a rarity in a proceeding controlled so strictly by the prosecutor. And there is little fear a prosecutor will be unable to recognize what testimony is exculpatory. The criminal justice rules already put faith in a prosecutor’s ability to identify what testimony is detrimental to her case.24


Despite the textual and common-sense rationales weighing in for a broader reading of the rule, two Circuits remain in the common-law cave. The Second Circuit was the first to tighten the standard around the Former Testimony exception. In United States v. DiNapoli, an organized crime prosecution, two witnesses patently denied the existence of any criminal organization even after they had been granted immunity.25 These statements were then offered by the defense at trial when the two witnesses became unavailable to testify. An en banc majority cited as rationale for limiting the Former Testimony exception all three critiques leveled against a broader reading of the rule. It held that on the particular set of facts, the prosecutor’s motive to discredit the witness was substantially less “intense” than it would have been at trial, thus the grand jury testimony was properly excluded by the trial judge.26 The court fashioned a rule that turned not only on whether the questioner in the grand jury stage is on the same side as they would be at trial, but also on whether the questioner had “a substantially similar degree of interest in prevailing on that issue.”27 Furthermore, the court in DiNapoli held that trial courts applying this test should consider not just what questioning was undertaken, but “what was available but forgone.”28 This test imports into Rule 804(b)(1) language that appears nowhere in the text.

The First Circuit followed suit. Citing DiNapoli, the court in United States v. Omar precluded testimony developed from grand jury witnesses in a bank fraud and money laundering prosecution.29 Building on DiNapoli, the court advocated for a balancing test where the stakes of the indictment, the burden of proof, and the availability of contradictory evidence at the grand jury stage are all considered before the exculpatory evidence is admitted at trial.30 On the facts before it, the court decided that the indictment in the grand jury proceeding had not been in jeopardy because of the sheer volume of government-heavy evidence.31 This meant that the prosecutor had no motive to challenge the exculpatory evidence in a meaningful way.32

The problem with the DiNapoli and Omar standards is that it allows the prosecutor to determine what testimony will be admissible post hoc. Because the grand jury proceedings are closed, a judge has little evidence to determine whether an indictment was in jeopardy outside a prosecutor’s word. The Government will always be able to proffer a self-serving explanation for why it lacked a motive to examine at the grand jury stage.33 As a practical matter, such explanations will be immensely difficult to disprove, stacking the deck against defendants in direct contravention of 804(b)’s overall purpose of ensuring litigants are treated fairly.

The standard also puts the availability of exculpatory evidence directly in the hands of the prosecutor. Because a witness’s invocation of the Fifth Amendment qualifies them as unavailable, a prosecutor can control unavailability by deciding to which witnesses to grant immunity.34 If the witness offers no exculpatory evidence, they are immunized. If they do offer exculpatory evidence, there is no immunization and an increased likelihood the witness is unavailable for trial; their exculpatory testimony forever lost behind the grand jury curtain.

The First and Second Circuits would do well to reject the DiNapoli/Omar standard. It contradicts the direct text of the rule it seeks to interpret and creates a regime ripe for prosecutorial abuse. Missteps, poor strategic decisions, and malicious manipulation go unpunished at trial by defense counsel. A strict interpretation of the rule serves only to visit the sins of the prosecutor unto the defendant.

* This Contribution is a reflection of opinions I formed during my participation in the 2015 National Moot Court Competition, sponsored by the New York Bar, held in November, 2015. On the facts of the fictional record, a sophisticated trader, while at a party hosted by a tech-titan received information that a much-vaunted product would be a market disaster. Over the weekend, the trader divested all her interest in the company releasing the product. In a subsequent grand jury investigation, a witness who later became unavailable due to a medical condition, made a series of comments that exculpated the trader. Nonetheless, the statements were excluded as hearsay and the trader was convicted of insider trading. While the case was subdivided into two separate issues – the first considering the scope of insider trading tippee liability – this article focuses on the second: whether exculpatory statements given in a grand jury room can be entered against the government, despite the ban on hearsay, under the Former Testimony exception.

2. Fed. R. Evid. 804(b)(1).

3. Id.

4. See Michael M. Martin, The Former-Testimony Exception in the Proposed Federal Rules of Evidence, 57 Iowa L. Rev. 547, 557 (1972) (explaining that the drafters of the Federal Rules of Evidence provided no criteria to guide judges in the application of Rule 804(b)(1)).

5. United States v. Salerno, 505 U.S. 317, 321 (1992). See also United States v. Omar, 104 F.3d 519, 523 (1st Cir. 1997) (“[In Salerno], the Supreme Court all but held that Rule 804(b)(1) could embrace grand jury testimony . . . .”).

6. Compare United States v. McFall, 558 F.3d 951 (9th Cir. 2009) (considering admission of grand jury testimony against the Government using a “high level of generality” test in determining similar motive) with United States v. DiNapoli, 8 F.3d 909, 912 (2d Cir. 1993) (en banc) (requiring a “substantially similar degree of interest” at both proceedings).

7. State v. Klauber, 611 F.2d 512, 516-17 (4th Cir. 1979), cert. denied, 446 U.S. 908 (1980); United States v. Young Brothers, Inc., 728 F.2d 682, 691 (5th Cir. 1984), cert. denied, 469 U.S. 881 (1984); United States v. Foster, 128 F.3d 949 (6th Cir. 1997); McFall, 558 F.3d 951, United States v. Miller, 904 F.2d 65 (D.C. Cir. 1990).

8. Brandon Berkowski, Federal Rule of Evidence 804(b)(1)’s “Similar Motive” Test and the Admissibility of Grand Jury Testimony Against the Government, 79 Fordham L. Rev. 1213, 1259 n.379 (2011).

9. Martin, supra note 5, at 557.

10. Id.

11. Fed. R. Evid. 804(b)(1).

12. 904 F.2d 65.

13. Id. at 68.

14. Berkowski, supra note 9, at 1262 (describing the broad interpretation of the rule as a presumption of admissibility).

15. Fed. R. Evid. 804(a) (defining unavailability).

16. Fed. R. Evid. 104(b) (requiring that the elements of admissibility be proven by a preponderance of the evidence).

17. See generally DiNapoli, 8 F.3d at 910.

18. Recall that although the prosecutor and the grand jurors are sworn to secrecy, the witnesses are not.

19. Salerno, 505 U.S. at 329 (Stevens, J., dissenting).

20. See, e.g., Strickland v. Washington, 466 U.S. 668 (1984) (explaining, when setting out the standard for ineffective assistance of counsel claims, that reasonable strategic decisions made by defense counsel did not amount to deficient performance).

21. Salerno, 505 U.S. at 329-30 (Stevens, J., dissenting).

22. Fed. R. Evid. 806.

23. Valerie A. Depalma, United States v. DiNapoli: Admission of Exculpatory Grand Jury Testimony Against the Government Under Federal Rule of Evidence 804(b)(1), 61 Brook L. Rev. 543, 577 (1995).

24. See generally Brady v. Maryland, 373 U.S. 83 (1963) (holding that Due Process required prosecutors to identify and turnover material exculpatory evidence to defense counsel prior to trial).

25. 8 F.3d 909.

26. Id. at 914-15.

27. Id.

28. Id.

29. 104 F.3d 519 (1st Cir. 1997).

30. Id. at 522-24.

31. Id. at 524.

32. Id.

33. DiNapoli, 8 F.3d at 914 (Pratt, J., dissenting) (In virtually all subsequent proceedings, examiners will be able to suggest lines of questioning that were not pursued at a prior proceeding. In almost every criminal case, the Government could probably point to some aspect of cross-examination . . . that could have been employed . . . at a prior grand jury proceeding.”).

34. See, e.g., Salerno, 505 U.S. at 321 (“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.”); United States v. Innamorati, 996 F.2d 456, 474 (1st Cir. 1993) (“Thompson’s invocation of the Fifth Amendment at trial rendered him ‘unavailable’ for purposes of Rule 804(b)(3).”).