Exception to the rule against hearsay: Text
Exception to the rule against hearsay: Interpretation of the text
Exception to the rule against hearsay: Unavailability
Exception to the rule against hearsay: Opportunity and similar motive to develop the prior testimony
In general
• As a general rule, the prior testimony of a witness offered in court to prove the truth of the matter asserted represents classic hearsay.
Rhea v. State, 814 N.E.2d 1031, 1032 (Ind. Ct. App. 2004), trans. denied(citing Guy v. State, 755 N.E.2d 248, 253 (Ind. Ct. App. 2001), reh’g denied, trans. denied)
See Berkman v. State, 976 N.E.2d 68, 74 (Ind. Ct. App. 2012), trans. denied, cert. denied, 134 S. Ct. 155 (2013)(“Prior testimony is hearsay . . . .”)
See also Morgan v. State, 903 N.E.2d 1010, 1015 (Ind. Ct. App. 2009), trans. denied(quoting Garner v. State, 777 N.E.2d 721, 724 (Ind. 2002))(“‘Generally, deposition testimony of an absent witness offered in court to prove the truth of the matter asserted constitutes classic hearsay.’”)
• Indiana Rule of Evidence 804 provides a hearsay exception for the prior testimony of a declarant who is “unavailable” as a witness.
Davis v. State, 13 N.E.3d 939, 945 (Ind. Ct. App. 2014), trans. denied(citing Berkman v. State, 976 N.E.2d 68, 74 (Ind. Ct. App. 2012), trans. denied, cert. denied, 134 S. Ct. 155 (2013))
See Morgan v. State, 903 N.E.2d 1010, 1015 (Ind. Ct. App. 2009), trans. denied(citing Garner v. State, 777 N.E.2d 721, 724 (Ind. 2002))(“Exceptions to the hearsay rule are found in Indiana Evidence Rule 804, which allows the use of prior recorded testimony in lieu of live testimony in certain circumstances.”)
Exception to the rule against hearsay: Text
• The following are not excluded by the hearsay rule if the declarant is unavailable as a witness.
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
Exception to the rule against hearsay: Interpretation of the text
• Prior recorded testimony may be admitted if the trial court finds that: (1) the testimony was given under oath at a prior judicial proceeding; (2) the party against whom the testimony is offered had the opportunity to cross-examine the witness at the prior proceeding; and (3) the witness is unavailable at the time of the later proceeding.
Guy v. State, 755 N.E.2d 248, 254 (Ind. Ct. App. 2001), reh’g denied, trans. denied(citing Stidham v. State, 637 N.E.2d 140, 143 (Ind. 1994))
Rhea v. State, 814 N.E.2d 1031, 1033 (Ind. Ct. App. 2004), trans. denied(quoting Guy v. State, 755 N.E.2d 248, 254 (Ind. Ct. App. 2001), reh’g denied, trans. denied)
Hughley v. State, 737 N.E.2d 420, 422 (Ind. Ct. App. 2000), trans. denied(citing Stidham v. State, 637 N.E.2d 140, 143 (Ind. 1994))
See Brown v. State, 671 N.E.2d 401, 404 n. 2 (Ind. 1996)(citing Stidham v. State, 637 N.E.2d 140, 143 (Ind. 1994))(“It is well established that the former testimony of a witness who (i) is currently unavailable, (ii) previously testified under oath at a prior judicial proceeding and (iii) was available for cross examination at the prior proceeding may be admissible.”)
See also Moore v. State, 697 N.E.2d 1268, 1272 (Ind. Ct. App. 1998)(citing Lowery v. State, 478 N.E.2d 1214, 1223 (Ind. 1985), reh’g denied, cert. denied, 475 U.S. 1098 (1986))(“Evidence consisting of a now unavailable witness' recorded testimony, given at a prior judicial proceeding and where the adverse party had a chance to cross-examine the now unavailable witness, is admissible as evidence in the subsequent proceeding.”)
Exception to the rule against hearsay: Unavailability
• “Before a witness' prior recorded testimony may be admitted in lieu of in court testimony, the prosecution must first show the declarant/witness is unavailable.”
Berkman v. State, 976 N.E.2d 68, 74-75 (Ind. Ct. App. 2012), trans. denied, cert. denied, 134 S. Ct. 155 (2013)(quoting Johnston v. State, 517 N.E.2d 397, 399 (Ind. 1988)(citing Iseton v. State, 472 N.E.2d 643, 648 (Ind. Ct. App. 1984)))
• For information about the meaning of “unavailable” within the context of Indiana Evidence Rule 804, please review Unavailability.
Exception to the rule against hearsay: Opportunity and similar motive to develop the prior testimony
• [The defendant] argues that [the] deposition was inadmissible under Evid. R. 804 because he did not have a similar motive to develop the testimony by direct, cross, or redirect examination in the discovery deposition as he would have had in live trial testimony or a trial deposition. [The defendant] contends that Indiana should distinguish between discovery and trial preservation depositions because the motive and manner of questioning are not the same. Indiana courts have previously addressed and rejected this argument. . . . [W]e conclude that [the defendant] had a similar motive to develop the testimony by direct, cross, or redirect examination in the discovery deposition as he would have in live trial testimony or a trial deposition.
Morgan v. State, 903 N.E.2d 1010, 1015-16 (Ind. Ct. App. 2009), trans. denied(quotation marks and citations omitted)
• [The defendant] suggests a change in the theory of the defense necessitates a finding that a similar motive to cross-examine was not present. We do not agree. A review of the authorities cited in Bryant v. State, 385 N.E.2d 415 (Ind. 1979), reh’g denied, indicates a change in the theory of a case is not what constitutes a change in motive. In Bryant the issues in litigation were so dissimilar in the two procedural settings that the nature of the cross-examination in the first would not have achieved the goals of cross-examination for the second. A change in the theory of the defense as between the prior hearing and the hearing in issue is not a change in motive so as to disqualify the prior testimony under our holding in Bryant.
Moore v. State, 467 N.E.2d 720, 724 (Ind. 1984)
• [The defendant] had a full opportunity at the first trial to cross examine [the witness] and, in fact, thoroughly performed such cross examination. [The defendant’s] motive in the first trial was similar, if not identical, to his motive in the second trial: present the best possible defense to the criminal charges against him. The trial court properly admitted the transcript of [the witness’s] testimony from the first trial.
Griffin v. State, 692 N.E.2d 468, 472 (Ind. Ct. App. 1998), aff’d on reh’g, 694 N.E.2d 304 (Ind. Ct. App. 1996)
• [The defendant] contends on appeal that [the witness's] response to trial counsel's question amounted to stone-walling and indicated that any further questioning would have resulted in further disingenuous responses. Therefore, according to [the defendant], [the witness's] lack of co-operation denied [the defendant] a chance to conduct an effective cross-examination. We do not necessarily disagree with [the defendant's] assessment that [the witness's] response to defense counsel's question was stone-walling. Nevertheless, regardless of whether the answer was a result of [the witness's] lack of cooperation or was a product of [the witness's] confusion, the fact remains that defense counsel had an opportunity to question [the witness] more thoroughly than he did. . . . [T]he fact that defense counsel decided not to conduct a more thorough questioning of [the witness] was a matter of inclination, not opportunity.
Hughley v. State, 737 N.E.2d 420, 424 (Ind. Ct. App. 2000), trans. denied(quotation marks and citation omitted)
Identification of the parties and issues
• “It must also be determined whether there is sufficient identification of the parties and the issues between the former and present proceedings.”
Berkman v. State, 976 N.E.2d 68, 75 (Ind. Ct. App. 2012), trans. denied, cert. denied, 134 S. Ct. 155 (2013)( quoting Johnston v. State, 517 N.E.2d 397, 399 (Ind. 1988)(citing Spence v. State, 393 N.E.2d 277, 281 (Ind. Ct. App. 1979)))
• “In Spence, this court states: ‘Absolute identity is not required, only sufficient identity to insure that cross-examination in the former case was directed to the issues presently relevant and that the former parties were the same in motive and interest.’”
Berkman v. State, 976 N.E.2d 68, 74-75 (Ind. Ct. App. 2012), trans. denied, cert. denied, 134 S. Ct. 155 (2013)(quoting Johnston v. State, 517 N.E.2d 397, 399 (Ind. 1988)(quoting Spence v. State, 393 N.E.2d 277, 281 (Ind. Ct. App. 1979)))
• It is asserted that the issue was not the same at the hearing to suppress and in the trial. While the purpose of the particular proceedings may have been different, the guilt or innocence of [the defendants] was the ultimate issue in both proceedings. . . . Under the circumstances as shown by the record before us, the trial court did not err in permitting the testimony of Sergeant Akeman given at the hearing to suppress, to be reproduced at the trial.
Stearsman v. State, 143 N.E.2d 81, 87 (Ind. 1957), reh’g denied
Discretion of the trial court
• “The decision whether to invoke the rule allowing admission of prior recorded testimony is within the sound discretion of the trial court.”
Davis v. State, 13 N.E.3d 939, 946 (Ind. Ct. App. 2014), trans.denied(quoting Berkman v. State, 976 N.E.2d 68, 74 (Ind. Ct. App. 2012), trans. denied, cert. denied, 134 S. Ct. 155 (2013)(quoting Johnston v. State, 517 N.E.2d 397, 399 (Ind. 1988)))
See Garner v. State, 777 N.E.2d 721, 724 (Ind. 2002)(“The decision to invoke the rule allowing admission of prior recorded testimony[,] such as a deposition, is within the sound discretion of the trial court.”)
See also Thomas v. State, 966 N.E.2d 1267, 1270 (Ind. Ct. App. 2012), trans. denied(quoting Kendrick v. State, 947 N.E.2d 509, 515 (Ind. Ct. App. 2011), reh’g denied, trans. denied, cert. denied, 132 S. Ct. 1752 (2012))(“‘The decision whether to allow admission of prior recorded testimony is within the sound discretion of the trial court.’”)
See also Rhea v. State, 814 N.E.2d 1031, 1033 (Ind. Ct. App. 2004), trans. denied(citing Guy v. State, 755 N.E.2d 248, 254 (Ind. Ct. App. 2001), reh’g denied, trans. denied)(“Our courts have held that the decision whether to admit former testimony of an unavailable witness is within the discretion of the trial court.”)
Confrontation clause
• For more information about the Confrontation Clause of the Sixth Amendment and its relationship to prior recorded testimony, please review Right of Confrontation.