United States v. Salerno - Oral Argument - April 20, 1992

United States v. Salerno

Media for United States v. Salerno

Audio Transcription for Opinion Announcement - June 19, 1992 in United States v. Salerno

Audio Transcription for Oral Argument - April 20, 1992 in United States v. Salerno

William H. Rehnquist:

We'll hear argument first this morning in No. 91-872, United States against Salerno.

Mr. Feldman.

James A. Feldman:

Thank you, Mr. Chief Justice, and may it please the Court:

This case raises an issue concerning the proper interpretation of Federal Rule of Evidence 804(b)(1).

Under Rule 804(b)(1) former testimony is admissible if the party against whom the testimony is offered had an opportunity and similar motive to cross-examine the declarant at the time the testimony was given.

The court of appeals in this case held that that express similar motive requirement was irrelevant, and that the former testimony at issue here... which was grand jury testimony... was admissible under Rule 804(b)(1).

William H. Rehnquist:

Did the court of appeals question whether or not there was a similar motive?

James A. Feldman:

No, they did not.

The court of appeals... the only thing they said about whether there was a similar motive was that they agreed... I think this is almost a quote... they agreed with the district court that the Government may well not have had a similar motive to cross-examine the declarants.

They didn't say... I don't think there's a word in the court of appeals opinion, or in their later opinion in the case of United States v. Bahadar where they attempted to clarify their opinion in this case.

I don't think there's a word in either opinion that suggests that they thought the Government did have a similar motive.

Sandra Day O'Connor:

Mr. Feldman, the district court found the Government did not have a similar motive.

Is that correct?

James A. Feldman:

That's correct.

Sandra Day O'Connor:

Was that a determination that there was no similar motive as a matter of law, or as a matter of fact?

James A. Feldman:

I believe that was largely a determination of fact.

The district court made--

Sandra Day O'Connor:

It reads as though the district court decided as a matter of law that there never would be a similar motive at the grand jury proceeding.

What do you think they decided?

James A. Feldman:

--I think the factors that influenced the district court... a lot of those factors would probably be present in other cases.

And therefore, I think district courts would frequently... and should... reach the same conclusion that the district court did here.

But the district court, when it made that decision, had before it the particular grand jury transcripts at issue here.

The court had sealed materials that it referred to in its opinion, actually.

Sandra Day O'Connor:

Well, do you think it's an issue of fact?

James A. Feldman:

Yes, I do think it's an issue of fact.

Sandra Day O'Connor:

And so on a case-by-case basis the court would have to determine whether there is similar motive.

James A. Feldman:

I think that... I think that as a general matter that's certainly... that's certainly true under Rule 804(b)(1), as the rule would be applied to a variety of different former proceedings.

I think in particular, with respect to grand jury proceedings, the answer should almost always or always be, because of the structure of the proceeding, and because of the nature of the inquiry that the proceeding is undertaking, that the answer should almost always be that the Government did not have a similar motive.

Insofar as... in fact, I think generally the considerations as to whether hearsay grand jury testimony should be admitted against the Government or against a defendant, I think that it's more profitably considered as a general matter under Rule 804(b)(5), where a court can look at the particular circumstantial guarantees of trustworthiness and look at the whole situation and decide whether there is some basis to think that the testimony is reliable enough to be introduced at trial.

Anthony M. Kennedy:

Have the circuit courts discussed the question of the test for and the definition of similar motive, or is this still a very newly emergent doctrine?