330
Stevens, J., dissenting
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 (CA1 1979) (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).
Page: Index Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 NextLast modified: October 4, 2007