by Rahul Hari 1

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.” 2The 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.


  1. 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).”).