Tag: New York City Bar’s National Competition

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.