Hearsay and circumstances of its admissibility - Former test...

Learning Outcomes

This article explains the hearsay rules governing former testimony and depositions for MBE purposes, including:

• Identifying when prior trial, hearing, or deposition testimony qualifies for the former testimony hearsay exception.
• Distinguishing the admissibility requirements in civil versus criminal cases, with particular attention to Confrontation Clause limits on testimonial statements.
• Applying the unavailability requirement under Rule 804(a), including when death, absence, privilege, or refusal to testify is sufficient and when unavailability is improperly manufactured.
• Evaluating whether the party against whom the testimony is offered (or a predecessor in interest in civil cases) had an adequate opportunity and similar motive to examine the witness.
• Determining when deposition testimony may be used at trial for impeachment only and when it may be admitted as substantive evidence under both the Rules of Evidence and Civil Procedure.
• Analyzing how distance, inability to subpoena, or other exceptional circumstances affect the use of depositions in lieu of live testimony.
• Spotting common exam traps involving grand jury testimony, preliminary hearings, discovery-only depositions, and overlapping parties or issues across proceedings.
• Integrating these rules into a step-by-step analytical framework for resolving former testimony and deposition questions on the MBE quickly and accurately.

MBE Syllabus

For the MBE, you are required to understand the rules governing the admissibility of hearsay, especially as they relate to former testimony and depositions, with a focus on the following syllabus points:

• The definition and policy rationale for the hearsay rule.
• The former testimony exception under Federal Rule of Evidence 804(b)(1).
• Unavailability under Federal Rule of Evidence 804(a), including limits on manufactured unavailability.
• The use of depositions at trial under both the rules of evidence and civil procedure.
• Opportunity and similar motive to develop testimony by direct, cross, or redirect examination.
• Differences between civil and criminal cases, including Confrontation Clause requirements.
• The role of parties and predecessors in interest in satisfying the former testimony exception.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is required for former testimony to be admissible under the hearsay exception?
   1. The declarant is unavailable and the party against whom the testimony is offered had an opportunity and similar motive to cross-examine.
   2. The declarant is available and the testimony was given under oath.
   3. The testimony was given at a deposition, regardless of party opportunity.
   4. The testimony was given in a prior unrelated proceeding.
2. In a civil case, a deposition transcript may be used at trial if:
   1. The witness is unavailable and the opposing party had an opportunity to cross-examine.
   2. The deposition was taken for discovery only.
   3. The witness is available but refuses to testify.
   4. The deposition was not under oath.
3. In a criminal case, former testimony from a preliminary hearing is admissible against the accused if:
   1. The accused had an opportunity and similar motive to cross-examine at the hearing.
   2. The accused was not present at the hearing.
   3. The declarant is available at trial.
   4. The testimony was not subject to cross-examination.

Introduction

The hearsay rule generally excludes out-of-court statements offered to prove the truth of what they assert. Former testimony and depositions are classic examples of out-of-court statements, so they are hearsay when offered for their truth. Yet, under well-defined conditions, they are considered reliable enough to be admitted.

Key Term: Hearsay
An out-of-court statement offered to prove the truth of the matter asserted.

The Rationale for the Hearsay Rule

Hearsay is usually excluded because the declarant is not testifying live in court, so the fact-finder cannot directly evaluate:

• Perception (did the declarant accurately observe what happened?),
• Memory (does the declarant accurately recall it?),
• Sincerity (is the declarant lying or exaggerating?),
• Communication (is the declarant expressing the idea clearly?).

Cross-examination, demeanor observation, and the oath are the main safeguards for these concerns. Former testimony and depositions can be admitted when those safeguards were substantially present in the earlier proceeding and when the opposing party had a real chance to test the testimony then.

Key Term: Former Testimony
Testimony given under oath at a prior trial, hearing, or deposition, now offered at a later proceeding as evidence.

The core idea: if the earlier testimony was given under oath, on the record, and subject to an adequate opportunity for questioning, it can be used when the witness cannot testify again.

Former Testimony Exception

Under Federal Rule of Evidence 804(b)(1), former testimony is admissible as a hearsay exception when several conditions are all satisfied.

Key Term: Unavailability
A declarant is unavailable if they cannot testify at the current proceeding due to death, physical or mental illness, absence beyond reach of the court despite reasonable efforts, a valid privilege, refusal to testify despite court order, or claimed lack of memory.

Requirements for Admissibility

For former testimony to be admissible under the hearsay exception:

• The declarant must be unavailable.
• The prior testimony must have been given under oath at a trial, hearing, or deposition taken in accordance with law.
• The party against whom the testimony is now offered (or, in civil cases, that party’s predecessor in interest) must have had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Key Term: Party Against Whom Offered
The current opposing party—the party against whom the former testimony is being used at the present trial or hearing.

Key Term: Opportunity and Similar Motive
The party (or predecessor in interest in civil cases) must have had a realistic chance to question the witness and a reason to do so that is substantially similar to the reason they would have at the current trial.

Unavailability in Detail

Under the federal rules, a declarant is generally considered unavailable when:

• The declarant is exempt from testifying because of privilege (e.g., Fifth Amendment).
• The declarant refuses to testify despite a court order.
• The declarant testifies that they cannot remember the subject matter.
• The declarant cannot be present or testify because of death or physical or mental illness.
• The declarant is absent and the proponent cannot procure attendance (and, for most 804 exceptions, testimony by deposition) by reasonable means.

Importantly:

• Unavailability cannot be manufactured. If the proponent of the statement wrongfully causes the declarant’s unavailability to gain a hearsay advantage, unavailability is not satisfied (and other sanctions may apply).
• For most 804(b) exceptions, if the declarant could reasonably provide testimony by deposition, they are treated as available. An important exam point: the former testimony exception itself (and forfeiture by wrongdoing) does not require that a new deposition be taken, because the earlier testimony is the very statement being offered.

Key Term: Predecessor in Interest
A person whose legal rights or obligations in the subject matter have passed to another (e.g., grantor–grantee, decedent–executor, life tenant–remainderman, assignor–assignee) such that they had a similar stake and motive in the prior proceeding.

Parties and Subject Matter

Two main similarity requirements must be satisfied:

• Similarity of parties (or interests):

  • The rule does not demand identical parties in both proceedings.
  • It requires that the party against whom the testimony is now offered, or in a civil case that party’s predecessor in interest, was a party in the earlier proceeding and had a comparable incentive to challenge the testimony.
  • Examples of predecessors in interest: the decedent whose estate now sues/defends, a grantor to a grantee in a land dispute, an assignor of a contract to an assignee.

• Similarity of subject matter and motive:

  • The prior testimony must concern the same or a closely related factual issue.
  • The earlier proceeding must have given the party a similar motive to examine the witness—e.g., both proceedings turn on whether the defendant ran a red light, even if the legal claims differ (negligence vs. property damage).

If the issues are very different, the motive to cross-examine may not be similar, and the exception will not apply.

Civil vs. Criminal Cases

The former testimony exception applies in both civil and criminal cases, but there are important differences, especially because of the Confrontation Clause in criminal prosecutions.

Key Term: Confrontation Clause
The Sixth Amendment right of a criminal defendant to be confronted with the witnesses against them, which generally requires that testimonial statements not be admitted against the accused unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine.

Civil Cases

• Former testimony is admissible if:
  • The declarant is unavailable.
  • The current opposing party, or that party’s predecessor in interest, was a party in the earlier proceeding.
  • That party had an opportunity and similar motive to develop the testimony by examination.

Examples:

• Deposition testimony from a prior civil lawsuit over the same accident may be used in a later civil suit involving a different plaintiff but the same defendant if the defendant previously had a full opportunity to cross.
• Testimony from a probate proceeding about the validity of a deed may be used in a later quiet title action when the party’s predecessor in interest had an identical stake in establishing or defeating title.

Criminal Cases

In criminal cases, the rules are stricter:

• The accused (or their counsel) must have had an actual opportunity to examine the witness in the earlier proceeding and a similar motive to do so.
• The Confrontation Clause also applies to testimonial hearsay (which former testimony almost always is), so constitutional and evidentiary requirements must both be satisfied.
• Testimony from proceedings where the defendant had no right to be present or cross-examine (e.g., grand jury) generally cannot be used against the accused as former testimony.

Key Term: Preliminary Hearing
A pretrial criminal hearing held to determine whether there is probable cause to proceed with prosecution, at which the accused is typically present and may have a right to cross-examine witnesses.

Key Term: Grand Jury
A body that determines whether there is probable cause to charge an individual with a crime, usually conducted ex parte and without the accused’s presence or right to cross-examine.

For MBE purposes:

• Preliminary hearing testimony can often qualify as former testimony against the accused if defense counsel had a genuine chance and motive to cross-examine the witness.
• Grand jury testimony almost never qualifies for use against the accused under the former testimony exception because the accused typically had no opportunity to cross-examine.

Use of Depositions at Trial

Depositions are a common source of former testimony. They can be used at trial in several ways, and the rules of civil procedure and evidence interact.

Key Term: Deposition
Sworn out-of-court testimony, taken with notice and recorded, for discovery and/or later use at trial.

Deposition as Former Testimony (Hearsay Exception)

A deposition transcript may be admitted as substantive evidence under the former testimony exception when:

• The deponent is now unavailable.
• The deposition was taken under oath and in accordance with law.
• The party against whom it is offered (or predecessor in interest in a civil case) had an opportunity and similar motive to examine the deponent.

Here the deposition is treated like any other former testimony under Rule 804(b)(1).

Deposition Use Under Civil Procedure Rules

In federal civil cases, Rule 32 of the Federal Rules of Civil Procedure provides additional guidance on when depositions may be used at trial, subject to the rules of evidence. Key points:

• A deposition may be used to impeach the deponent’s trial testimony.
  • Because impeachment use is not for the truth of the matter asserted, it is not hearsay.
• A deposition may be used for any purpose (including as substantive evidence) if:
  • The witness is dead.
  • The witness is more than 100 miles from the courthouse (and the absence is not procured by the party offering the deposition).
  • The witness cannot testify because of age, sickness, or imprisonment.
  • The party offering the deposition could not procure the witness’s attendance by subpoena.
  • The court finds exceptional circumstances that justify using the deposition.
• The deposition of an adverse party may be used for any purpose.

On the MBE, the most testable ideas include:

• Distance greater than 100 miles can make deposition testimony usable at trial.
• A deposition taken “for discovery only” is still under oath and may qualify for use at trial if the other conditions are met.
• A deposition taken without oath cannot be used as testimony.

Opportunity and Similar Motive in Practice

The “opportunity and similar motive” requirement is very important and often tested.

Consider whether, in the earlier proceeding:

• The party had a realistic chance to cross-examine (e.g., counsel was present, time and scope allowed).
• The party’s stakes and objectives regarding that witness’s testimony were substantially the same as now (e.g., both proceedings hinged on whether the declarant saw the defendant commit the act).

If the earlier proceeding involved only a minor issue or limited questioning (for example, an informal hearing where cross-examination was not permitted), the requirement may not be satisfied.

Worked Example 1.1

A plaintiff sues a defendant for breach of contract. At a prior hearing in a related case, a key witness testified under oath and was cross-examined by the defendant. The witness has since died. The plaintiff now offers the transcript of that testimony at trial. Is it admissible?

Answer:
Yes. The witness is unavailable due to death, the testimony was under oath at a prior proceeding, and the defendant had an opportunity and similar motive to cross-examine on the contract issues. The former testimony exception applies.

Worked Example 1.2

In a criminal trial, the prosecution seeks to admit the preliminary hearing testimony of a witness who has moved overseas and cannot be compelled to attend trial. The defendant was present and cross-examined the witness at the preliminary hearing. Is the testimony admissible?

Answer:
Yes. The witness is unavailable (cannot be brought to court despite reasonable efforts), and the defendant had an opportunity and similar motive to cross-examine at the preliminary hearing. Both Rule 804(b)(1) and the Confrontation Clause are satisfied.

Worked Example 1.3

In a civil negligence case, Witness gave deposition testimony under oath. The defendant’s counsel attended and cross-examined Witness. At trial, Witness is alive and within 20 miles of the courthouse, but the plaintiff prefers to read the deposition to save time. May the plaintiff use the deposition as substantive evidence?

Answer:
Generally no. The witness is not unavailable, and the distance requirement for using the deposition in lieu of live testimony is not met. The deposition could be used for impeachment if Witness testifies inconsistently, but absent an applicable rule (e.g., court finds exceptional circumstances) it cannot substitute for live testimony as substantive evidence.

Worked Example 1.4

In a criminal case, the prosecution wants to introduce a witness’s grand jury testimony because the witness refuses to testify at trial, invoking the Fifth Amendment. The defendant was not present at the grand jury proceeding and had no right to cross-examine. Is the grand jury testimony admissible as former testimony?

Answer:
No. Although the witness is now unavailable, the defendant had no opportunity to cross-examine at the grand jury proceeding. The former testimony exception does not apply, and the Confrontation Clause would bar admission of this testimonial hearsay against the accused.

Worked Example 1.5

Owner sues Neighbor over a boundary dispute. Years earlier, in a different quiet title action, Owner’s predecessor in interest (the prior landholder) litigated the same boundary line against a third party. In that earlier case, Surveyor testified under oath and was examined by counsel. Surveyor is now dead. Owner offers Surveyor’s earlier testimony. Is it admissible?

Answer:
Yes. Surveyor is unavailable; the former testimony was given under oath; and Owner’s predecessor in interest (the prior landholder) had the same motive to develop Surveyor’s testimony about the boundary. The similarity of interest and subject matter satisfies the “predecessor in interest” and “similar motive” requirements in a civil case.

Exam Warning

In criminal cases, former testimony is admissible against the accused only if:

• The declarant is unavailable, and
• The accused previously had an actual opportunity and similar motive to cross-examine the witness.

If the accused was not present, had no right to cross-examine, or the proceeding limited cross-examination so severely that there was no meaningful opportunity, former testimony is inadmissible—and the Confrontation Clause will independently bar it.

Revision Tip

When analyzing former testimony or deposition questions on the MBE, always walk through these steps:

1. Is the statement hearsay, and is it being offered for its truth?
2. Is the declarant unavailable under the 804(a) categories (without manufactured unavailability)?
3. Was the testimony given under oath at a qualifying proceeding?
4. Did the party against whom it is offered (or a civil predecessor in interest) have an opportunity and similar motive to examine the witness?
5. For criminal cases, does admission comply with the Confrontation Clause (testimonial statement + prior cross + unavailability)?

If any step fails, the former testimony exception does not apply.

Key Point Checklist

This article has covered the following key knowledge points:

• Hearsay is generally inadmissible unless an exception, such as former testimony, applies.
• Former testimony must have been given under oath at a trial, hearing, or deposition.
• The declarant must be unavailable, and unavailability cannot be caused by the proponent’s wrongdoing.
• The party against whom the testimony is offered (or a predecessor in interest in civil cases) must have had an opportunity and similar motive to examine the witness.
• In civil cases, predecessors in interest can satisfy the party requirement when their stakes and motives matched those of the current party.
• In criminal cases, the accused’s right to confrontation requires prior opportunity for cross-examination and unavailability of the witness; grand jury testimony will almost never qualify.
• Depositions can be used at trial for impeachment and, in specified circumstances, as substantive evidence, but must comply with both the rules of evidence and civil procedure.
• A deposition taken under oath for “discovery only” can still qualify as former testimony if all other requirements are met.
• The deposition of an adverse party can generally be used for any purpose (often also qualifying as a party-opponent admission).
• Always analyze unavailability, opportunity, and similar motive together when deciding if former testimony or deposition transcripts are admissible.

Key Terms and Concepts

• Hearsay
• Former Testimony
• Unavailability
• Party Against Whom Offered
• Opportunity and Similar Motive
• Predecessor in Interest
• Confrontation Clause
• Preliminary Hearing
• Grand Jury
• Deposition