United States v. Salerno
120 L. Ed. 2d 255, 505 U.S. 317, 1992 U.S. LEXIS 3690 (1992)
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Rule of Law:
Federal Rule of Evidence 804(b)(1) does not permit the admission of an unavailable witness's former testimony unless the party against whom the testimony is offered had a 'similar motive to develop the testimony' at the prior proceeding. This 'similar motive' requirement is a mandatory element of the rule and cannot be disregarded for general reasons of 'adversarial fairness'.
Facts:
- Anthony Salerno and others (respondents) were indicted for RICO violations, accused of being part of the Genovese crime family which rigged bidding on large construction projects in New York City.
- The scheme allegedly involved a 'Club' of concrete companies that received allocated contracts.
- Two owners of Cedar Park Concrete, Frederick DeMatteis and Pasquale Bruno, were granted immunity to testify before a federal grand jury.
- In their grand jury testimony, DeMatteis and Bruno repeatedly denied that they or their company, Cedar Park, participated in the bid-rigging 'Club'.
- At trial, the United States presented evidence, including testimony from other contractors and intercepted conversations, to prove that Cedar Park was in fact part of the 'Club'.
- The respondents subpoenaed DeMatteis and Bruno to testify at trial, hoping they would repeat their exculpatory grand jury testimony.
- When called to the stand at trial, both DeMatteis and Bruno invoked their Fifth Amendment privilege against self-incrimination and refused to testify.
Procedural Posture:
- A federal grand jury in the Southern District of New York indicted Anthony Salerno and six others (respondents) on RICO and other federal offenses.
- At trial in the U.S. District Court, the respondents sought to introduce the exculpatory grand jury testimony of two witnesses who refused to testify at trial.
- The District Court denied the request, ruling that the prosecution did not have a 'similar motive' to develop the testimony during the grand jury's investigative stage as it would at trial.
- A jury convicted the respondents.
- The respondents (as appellants) appealed to the United States Court of Appeals for the Second Circuit.
- The Court of Appeals reversed the convictions, holding that the 'similar motive' requirement should 'evaporate' for fairness when the government obtains immunized grand jury testimony from a witness who then refuses to testify at trial.
- The United States (as petitioner) sought and was granted a writ of certiorari by the U.S. Supreme Court.
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Issue:
Does Federal Rule of Evidence 804(b)(1) permit a criminal defendant to introduce the exculpatory grand jury testimony of a witness who becomes unavailable by invoking the Fifth Amendment privilege at trial, without a showing that the prosecution had a 'similar motive' to develop that testimony during the grand jury proceeding?
Opinions:
Majority - Justice Thomas
No. Rule 804(b)(1) does not permit the introduction of former testimony without a specific finding that the prosecution had a 'similar motive' to develop the testimony in the grand jury proceeding as it would at trial. The plain language of the Rule requires that each element, including the 'similar motive' clause, be satisfied before former testimony can be admitted. The Court cannot disregard the text of an evidentiary rule based on a litigant's preference or a generalized appeal to 'adversarial fairness'. The respondents' argument fails because the government did not 'open the door' by presenting the grand jury testimony itself; it merely introduced other, contradictory evidence. The case is remanded for the lower court to conduct the fact-specific inquiry of whether the government actually had a similar motive in this particular instance, an inquiry the Court of Appeals erroneously bypassed.
Dissenting - Justice Stevens
Yes. The grand jury testimony was admissible under the plain language of Rule 804(b)(1) because the government clearly had an 'opportunity and similar motive' to develop the testimony. The government's core interest at the grand jury stage was identical to its interest at trial: to establish that the witnesses' exculpatory testimony was false and prove Cedar Park's involvement in the criminal conspiracy. A party's tactical decision not to fully cross-examine a witness does not mean the motive to do so was absent. Since the factual issues were the same and the government's objective was to discredit the witnesses' denials in both proceedings, the 'similar motive' requirement was satisfied.
Concurring - Justice Blackmun
No, the testimony is not automatically admissible. The majority is correct to remand because the 'similar motive' inquiry is an inherently factual one that depends on the specific circumstances of the case, not a categorical legal rule. It cannot be said that the prosecution either always or never has a similar motive when questioning a witness before a grand jury as compared to trial. Because the lower courts did not engage in the appropriate fact-specific inquiry into the similarity of issues and the context of the grand jury questioning, a remand is necessary for proper consideration.
Analysis:
This decision solidifies a textualist interpretation of the Federal Rules of Evidence, prioritizing the plain language of the rule over judicial exceptions crafted for 'fairness'. It establishes that the 'similar motive' test is a mandatory, fact-specific inquiry that courts must undertake, rather than applying a categorical rule for or against the admission of grand jury testimony. The ruling places the burden on the party seeking to admit the testimony to demonstrate a substantial similarity in the opponent's motives across the two proceedings. This makes it more difficult for defendants to introduce exculpatory grand jury testimony at trial when the witness later becomes unavailable.
