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

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Saturday, October 11, 2008

Cold Cases Become Cold Again: Illinois Prosecutors Recognize That Death Of Key Prosecution Witness Doesn't Trigger Former Testimony Exception

The death of a key witness for the prosecutors has led Kane County prosecutors to mull dropping charges in two "cold case" Aurora murders.  Jamaal "Isaac" Delville Garcia was slated to testify against Jesse Lopez and Quentin Moore as part of the Aurora cold case operation, a joint FBI and local police venture dubbed First Degree Burn.  Both of those cases, however, were jeopardized after Garcia was found murdered on September 23rd.  His body was badly burned, and he had been shot multiple times, apparently after a dispute over a gun.  Not only was Garcia to testify against Lopez and Moore, but his testimony was apparently essential to their prosecutions, with Kane County State's Attorney John Barsanti saying, "We cannot prove these cases without him."

An article on the case states that all of the cold case witnesses went before a grand jury. According to the article, however, the State's Attorney recognized that "[b]ecause a defense attorney wouldn't be able to question Garcia, any statements or grand jury testimony he provided are not admissible in a trial."  This conclusion is correct, and it provides a nice platform for a discussion of the former testimony exception to the rule against hearsay.

Under Federal Rule of Evidence 804(b)(1), the "former testimony" exception to the rule against hearsay, if a declarant is "unavailable" to testify at trial, the following is admissible:

     "Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."

Illinois doesn't have codified rules of evidence, but it has basically applied the same reasoning in its case law. See, e.g., People v. Rice, 651 N.E.2d 1083, 1086 (Ill. 1995) ("For an opportunity to cross-examine to be considered meaningful, and therefore adequate and effective, the motive and focus of the cross-examination at the time of the initial proceeding must be the same or similar to that which guides the cross-examination during the subsequent proceeding. (Cf. Fed.R.Evid. 804(b)(1).).").

In other words, if the party against whom former testimony is offered had an opportunity and similar motive to develop the declarant's testimony at a hearing/deposition, he can't complain when that declarant's testimony is offered against him at trial. See id.  The problem for prosecutors in the Lopez and Moore cases is that neither the defendants nor defense counsel were present during Garcia's grand jury testimony, meaning that the defendants had no opportunity to develop Garcia's testimony.  Thus, the "former testimony" exception is inapplicable, and it looks as if the prosecution will have to drop the charges against them.

(It's important to note that even if the defendants were present for Garcia's grand jury testimony, the "former testimony" exception might not have applied because some courts have recognized that, at least in some circumstances, litigants have different motives at grand jury proceedings than they have at trials in terms of developing testimony. See, e.g., United States v. DiNapoli, 8 F.3d 909, 915 (2nd CIr. 1993) ("These two circumstances dispel similarity of motive, and the absence of similar motive is not rebutted by the limited cross-examination undertaken by the prosecutor at the grand jury.").

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/10/former-testimon.html

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