EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, October 19, 2008

What's My Motivation?: Iowa Court Finds Former Testimony Exception Applies To Deposition Testimony Despite New Attorney/Strategy

The recent opinion of the Court of Appeals of Iowa in State v. Hunt, 2008 WL 4569877 (Iowa.App. 2008), addresses an interesting argument concerning the former testimony exception to the rule against hearsay that I have never seen raised before:  Does a change in counsel/trial strategy make the exception inapplicable?  The court found that it does not, and I agree with its conclusion.

In Hunt, Ramale Hunt was convicted of first-degree murder in connection with the shooting and death of a man in Waterloo.  And part of the evidence used to convict him consisted of the deposition testimony of D'Alan Thurmond, who refused to testify at trial and who was thus held in contempt of court.  Thurmond's refusal to testify rendered him "unavailable" to testify under Iowa Rule of Evidence 5.804(a)(2), which states that a witness is "unavailable" if he "[p]ersists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so."

Because Thurmond was "unavailable," the trial court was able to consider whether any of the Rule 804(b) hearsay exceptions applied to his deposition testimony and determined that the former testimony exception contained in Iowa Rule of Evidence 5.804(b)(1).  Under this exception, testimony by an unavailable declarant is admissible if it was "[t]estimony given as a witness at another trial or hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course if the same or another proceeding if the party against whom the testimony is now offered...had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."

One of Hunt's many arguments on appeal was that the former testimony exception should not have applied to Thurmond's deposition testimony because his motive to develop Thurmond's testimony during the deposition was not the same as his motive to develop Thurmond's potential testimony at trial.  Specifically, he contended that his motive for developing the testimony of Thurmond at trial was different than his motive at the deposition because his "original attorney had a different theory of the case which was irreconcilable with the defense being presented at trial."

The Court of Appeals of Iowa, however, rejected this argument, finding that “[t]he motive of defendant's deposition is to nail down the testimony of an adverse witness and have it available in the event of an inconsistent statement during trial.  The court does not find dissimilar motives."  I agree with this conclusion and think that it is consistent with the Advisory Committee Note to the federal counterpart to Iowa Rule of Evidence 5.804(b)(1), which states in relevant part that "[i]f the party against whom now offered is the one against whom the testimony was offered previously, no unfairness is apparent in requiring him to accept his own prior conduct of cross-examination or decision not to cross-examine." 

Indeed, it would seem that if the court found otherwise, a party who knew that a witness who rendered particularly damaging deposition testimony against him would be "unavailable" at trial could change attorneys/strategies to ensure that the former testimony exception would not apply.



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