October 25, 2008
Twin Falls Idaho: Court of Appeals Of Idaho Grapples With Co-Conspirator Admissions Questions In Drug Ring Appeal
The recent opinion of the Court of Appeals of Idaho in State v. Rolon, 2008 WL 4659863 (Idaho.App. 2008), contains an interesting discussion of two issues raised by the co-conspirator admission rule.
In Rolon, Antonio Vasquez Rolon appealed from his convictions for conspiracy to traffic in more than 28 grams of heroin and for conspiracy to traffic in more than 28 grams of cocaine. At trial, the prosecution had relied heavily upon the testimony of Carlos Ortiz, who testified concerning statements made to him by Rolon's alleged co-conspirator, a man known by the name "Chaleco."
Ortiz specifically testified, inter alia, that
-he was invited by Chaleco to join him in dealing drugs;
-thereafter, Chaleco took him to a restaurant, telling him that he was going to meet "the boss," who Ortiz later identified as Rolon;
-Chaleco had told him that another alleged member of the drug ring, "Cumbia," traveled to Utah to obtain heroin and cocaine from Rolon and that during these trips, Rolon would follow Cumbia in a different vehicle to ensure that "everything was running alright."
When Rolon objected to this testimony, the trial judge overruled the objection, finding that Chaleco's statements "clearly fell within the hearsay rule exception for the statements of a co-conspirator."
On appeal, Rolon claimed, inter alia, that the trial judge erred in allowing Ortiz to testify about Chaleco's statements because the only evidence that there was a conspiracy between Chaleco and himself were Chaleco's statements themselves. And if his case were being heard under the Federal Rules of Evidence, his argument would have been legally correct. Under Federal Rule of Evidence 801(d)(2)(E), "[a] statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Rule 801(d)(2) also provides, however, that "[t]he contents of the statement shall be considered but are not alone sufficient to establish...the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E)."
However, while Idaho does have a counterpart to this federal co-conspirator admission rule in Idaho Rule of Evidence 801(d)(2)(E), it does not have a corresponding final sentence in Idaho Rule of Evidence 801(d)(2) indicating that the alleged co-conspirator's statements alone are insufficient to establish the conspiracy. Rolon raised the argument that the court should apply a similar limitation, but the court found that it did not need to reach this argument because there was evidence beyond Chaleco's statements establishing a conspiracy. Specifically,
"the state introduced evidence of Rolon's visits to several residences in the Treasure Valley associated with the conspiracy and particularly of one occasion wherein Rolon was observed leaving one of the residences and going directly to the bank to deposit $1,000. Other corroborating evidence disclosed that his name was found on documents in the Nampa residence; that titles to three vehicles connected to the conspiracy were found in his vehicle; that there was an inordinately high level of phone contact between Rolon and the other members of the conspiracy; and that documents found catalogued the drugs being transported from Utah to Idaho."
A second argument raised by Rolon on appeal was that Chaleco's statements did not qualify as co-conspirator admissions because they were not made "in furtherance" of the conspiracy. And the Court of Appeals of Idaho noted that there was a circuit split on this issue. It noted that some courts, such as the Sixth and Eighth Circuits, find that statements are made "in furtherance" of a conspiracy even when they merely "identify participants and their roles in the conspiracy," presumably even if they are part of "idle conversation." Conversely, it noted that some courts, such as the Supreme Court of Kentucky, have found that "a determining factor is whether a statement in any way assists or advances the objectives of a conspiracy-otherwise such a statement is not 'in furtherance' as prescribed by the rule."
Meanwhile, the Court of Appeals of Idaho decided to take the middle ground of the Ninth Circuit, which has
"allowed the admittance of testimony defining co-conspirators' roles as being in furtherance of a conspiracy, but, unlike the Sixth and Eighth Circuit cases discussed above, has not allowed their admission in all circumstances. Rather, the Court has distinguished between those that are a product of 'idle conversation' and those made with the intent to further the conspiracy."
The court then applied this standard and concluded that Chaleco's
"statements were made 'in furtherance' of the conspiracy. Specifically, both comments were made after Ortiz had agreed to join the drug ring and were part of his 'orientation' as they explained the operations and roles of the conspiracy. Ortiz, while perhaps considered less invested in the drug ring, was nonetheless distributing drugs daily and collecting cash, all for remuneration. He received compensation of $2,000 per month, all expenses paid, some amounts of drugs for personal use, and use of cell phones and vehicles. It is natural and necessary that Chaleco would identify Rolon's role in the operation. Ortiz, who subsequently received frequent telephone calls from Rolon, was not so far removed from the details of the operation that Chaleco's identification of Rolon as the source of the drugs would be 'idle conversation.' Thus, we conclude the district court did not err in admitting the statements under the conspiracy hearsay exception."
I'm not quite sure of the distinction between the approach of the Ninth Circuit (and now the Court of Appeals of Idaho) and the approach of the Supreme Court of Kentucky, but I agree that the approaches of the Sixth and Eighth Circuits allow for the admission of too many statements as co-conspirator admissions. And I would say that Chaleco's statement likely did qualify as co-conspirator admissions under any of the three constructions of the phrase "in furtherance."
October 24, 2008
Area of Expertise: Court Of Appeals Of Texas Finds Trial Court Made Improper Expert Witness Ruling In Priest Sexual Abuse Case
Generally, courts have been exceedingly liberal in finding witnesses to be qualified as an expert witness, but the recent opinion of the Court of Appeals of Texas in Teczar v. State, 2008 WL 4602547 (Tex.App.-Eastland 2008), reveals that there are limits to this liberalism.
In Teczar, Thomas H. Teczar was convicted of three offenses of aggravated sexual assault of a child and one offense of indecency with a child. Teczar was a priest at Saint Rita's Catholic Church in Ranger, Texas from the later 1980s until early 1993, and the alleged victim was Billy Ray Swiney, who was eleven years old when he moved with his mother and sister into a house across the street from the church in 1990. The prosecution also contended that Teczar committed numerous uncharged acts of child sexual abuse, including sexual abuse against David Lewcon when Lewcon was a child.
At Teczar's trial, however, Lewcon did not solely testify as a lay witness concerning these alleged acts of abuse; he also testified as "an expert on the psychology and behavior of those who commit child sexual abuse and their victims." Specifically, he testified "in some detail about the psychology of child sexual abuse, including the methods and practices of those who commit such abuse, the consequential psychological consequences for the victims, and the reasons why victims such as Swiney might be reluctant to make outcry about such abuse especially from an authority figure such as a priest." And after he was convicted, Teczar appealed, contending, inter alia, that both Lewcon's lay and expert testimony was improperly received.
First, with regard to Lewcon's expert testimony, the Court of Appeals noted that:
"In support of his expertise, Lewcon averred that he was a member and cofounder of the New England Chapter of the Survivors Network of those Abused by Priests (SNAP). He also was a founder and member of a small nonprofit organization called Advocates for Change. It is an organization that raises funds for efforts to assist clergy abuse victims or efforts in organizing seminars. At one time, he was listed on the SNAP website as a victim advocate and was available to consult with other victims of sexual abuse by priests. In that role, he consulted with more than 500 such victims.
Lewcon also testified that he was a coactive coach, which he defined as someone who has acquired some skills through seminars to be able to be more effective in identifying with clergy abuse victims. Moreover, he had operated a suicide hotline and had consulted with 'between 50 to 100' on that line. Lewcon had additionally been a victim of clergy abuse. He had also taken seminar courses through a company by the name of Coaches Training Institute that offered courses in 'how to be more effective on the subject of coaching.' He spent five weekends in taking those seminars, which cost him a total of $4,000. He studied 'mostly liberal arts courses' in college and had studied only the 'first level' of psychology, which, he said, was lower than Psychology 301. He had never received or applied for any kind of license as an expert on clerical abuse of children."
The Court of Appeals found these credentials formed an improper foundation to support Lewcon's expert testimony, and, notwithstanding the fact that courts have generally been exceedingly liberal in finding witnesses to be qualified as an expert witness, I think that I agree with its decision. The court noted that the "seminal" Texas precedent on this issue was the recent opinion of the Texas Court of Criminal Appeals in Vela v. State, 209 S.W.3d 128 (Tex.Crim.App. 2006), which held, inter alia, that the "the expert's background must be tailored to the specific area of expertise in which the expert desires to testify."
And, according to the Court of Appeals, while Lewcon had experience in dealing with victims of child abuse, he didn't have the requisite background in psychology to be able to deliver the detailed psychological testimony he rendered at trial. In other words, the court's opinion in Teczar is not a repudiation of the general rule that even the Mona Lisa Vitos of the world can be qualified as expert witnesses; instead, it merely recognizes that an expert witness' experience must match his testimony.
The Court of Appeals thus found that the trial court erred in admitting Lewcon's expert testimony and reversed and remanded. The Court of Appeals also found that the trial court erred in admitting evidence (including Lewcon's testimony) regarding Teczar's numerous uncharged acts of child sexual abuse, which the trial court had admitted under Texas Rule of Evidence 404(b) to prove identity. The appellate court correctly found that this was error because Teczar's
"identity was not really a disputed issue in the case. The defense did not claim, nor does the evidence suggest, that Swiney was not acquainted with [Teczar] prior to the time of the alleged offenses or that they were committed under circumstances that made it difficult or impossible for him to identify the person abusing him."
October 23, 2008
We're Not (Available) In Kansas Anymore: Supreme Court of Kansas Adds To Definition Of Unavailability In Battery Appeal
The recent opinion of the Supreme Court of Kansas in State v. Jefferson, 2008 WL 4601295 (Kan. 2008), reveals that there was a significant difference between the Kansas Rules of Evidence and the Federal Rules of Evidence on the issue of when a declarant is "unavailable." As a result of Jefferson, however, that distinction no longer exists.
In Jefferson, Anthony Jefferson appealed from his conviction for aggravated battery. Jefferson's conviction was based in part upon the testimony of Jesse Villa, Jefferson's neighbor, who testified against him at a preliminary hearing. Villa was subsequently subpoenaed to testify at Jefferson's trial, but, by that time he was incarcerated, and although he appeared, he refused to testify. Villa claimed no privilege, and he maintained that he had not been threatened. He said he was not afraid to testify; he simply refused to do so. The judge held him in contempt and sentenced him to 6 months in jail.
He also admitted Villa's testimony from the preliminary hearing pursuant to K.S.A. 60-460(c), its counterpart to Federal Rule of Evidence 804(b)(1), the former testimony exception the rule against hearsay. And like Federal Rule of Evidence 804(b)(1), K.S.A. 60-460(c) requires that a declarant be "unavailable" at trial before his former testimony can be admitted.
However, while Federal Rule of Evidence 804(a)(2) defines a declarant who "persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so" as "unavailable," K.S.A. 60-459(g) does not define such a witness as "unavailable." Instead, K.S.A. 60-459(g) states that:
"Unavailable as a witness" includes situations where the witness is (1) exempted on the ground of privilege from testifying concerning the matter to which his or her statement is relevant, or (2) disqualified from testifying to the matter, or (3) unable to be present or to testify at the hearing because of death or then existing physical or mental illness, or (4) absent beyond the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.
As I have noted before, however, courts have generally found that the enumerated definitions of "unavailability" in their rules of evidence are not exhaustive, and that its exactly what the Supreme Court of Kansas did in addressing Jefferson's appeal. It found that:
"the plain language of K.S.A. 60-459(g) permits situations other than those listed to equal witness unavailability....This brings us to the question of whether Villa's situation or circumstances, i.e., his refusal to testify in this case, qualified him as 'unavailable' under K.S.A. 60-459(g)The answer is yes. There was no practical distinction between Villa and any of the out-of-court declarants described in K.S.A. 60-459(g). His live testimony was just as inaccessible and just as necessary. His late-blooming reticence, likely generated by events that had transpired between Jefferson's preliminary hearing and trial, should not be permitted to undermine the court's truth-finding purpose."
As in a similar case in Colorado, I am a bit uneasy with this result, but I'm not ready at this point to endorse or criticize this practice.
October 22, 2008
After The Enactment, Take 2: California Appellate Court Finds Retroactive Application Of Corroboration Change Violates Ex Post Facto Clause
I've had two previous opportunities on this blog (here and here) to express my dissatisfaction with the way that the Supreme Court has defined the fourth type of law which cannot be applied retroactively under the Ex Post Facto Clause of the Constitution. And yet, while I am dissatisfied with the Court's definition, it has produced some desirable side effects, as is clear from a recent opinion by a California appellate court.
In People v. Chavez, 2008 WL 4615950 (Cal.App. 2 Dist. 2008), Jorge Ricardo Chavez appealed from his conviction of one count of a lewd act upon a minor. The alleged incidents leading to Chavez's conviction occurred between March 1986 and March 1998, the victim made the allegations in May 2006, and the complaint against Chavez was filed within one year of the report to police.
The statute of limitations for the charged offense was eight years, meaning that the complaint against Chavez ordinarily would not have been timely. However, at both the time of Chavez's alleged offense(s) and thereafter, California Penal Code Section 803(f)(1) provided that this limitations period could be extended if the jury found that:
(1) the crime was reported to law enforcement and a complaint was filed within one year of the date of the crime being reported, (2) the statute of limitations had expired as to the crime, (3) the crime involved substantial sexual conduct, and (4) there was independent corroboration of the crime.
The Ex Post Facto Clause issue in Chavez was that at the time of Chavez's alleged offense(s), the statute of limitations would only be extended if the jury found independent corroboration of the crime by clear and convincing evidence. After Chavez's alleged offense(s), however, California lowered the burden of proof under factor four and now only requires the jury to find independent corroboration of the crime by a preponderance of the evidence. And it was this latter burden of proof that the trial court applied in Chavez and which prompted Chavez's appeal after his conviction.
In addressing this argument, the Court of Appeal, Second District, noted that in Calder v. Bull, 3 U.S. 386, 390 (1798), the Supreme Court found that the Ex Post Facto Clause proscribes the retroactive application of four types of laws:
"(1) laws which criminalize and authorize punishment for acts which were innocent when done; (2) laws which aggravate a crime or make it greater than when it was committed; (3) laws which inflict a greater punishment than the law annexed to the crime when committed; and (4) '[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.'"
The Court of Appeal then noted that in Carmell v. Texas, 529 U.S. 513 (2000), the defendant was convicted of several sex-related crimes against his stepdaughter, who during some of the acts was 14 years-old or older. When these alleged acts occurred, the Texas statute criminzalizing them indicated that a defendant could not be convicted under the statute for sexual crimes against a minor 14 years-old or older solely based upon the testimony of the alleged victim; instead, there had to be some other evidence corroborating the alleged victim's testimony. Before the defendant's trial, however, Texas amended the controlling statute so that it no longer required corroboration.
After trial, the defendant was convicted despite the fact that the stepdaughter's testimony was not corroborated. The defendant's appeal eventually reached the United States Supreme Court, which held that application of the amended statute violated the ex post facto clause because it changed the quantum of evidence that was legally sufficient for a conviction. The Court then contrasted the Texas statute from the rules of evidence. It held that "[o]rdinary rules of evidence, for example, do not violate the Clause....Rules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case. More crucially, such rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption."
I won't again repeat my arguments as to why it makes no sense not to include laws that alter ordinary rules of evidence in the definition of "[e]very law that alters the legal rules of evidence." But what I will note is that it is clear from Carmell v. Texas that a nice side effect from the opinion is that it is now clear that laws which remove or change corroboration requirements cannot be retroactively applied under the Ex Post Facto Clause, and that is exactly why the Court of Appeal found that the trial court erred in Chavez. Nonetheless, because the Court of Appeal found that testimony by the alleged victim's sibling satisfied both the preponderance of the evidence and clear and convincing evidence standards, it found that the error was harmless and affirmed Chavez's conviction.
October 21, 2008
You're Never (Un)Available: First Circuit Finds Defendant Can't Create His Own Unavailability For Rule 804 Purposes
The recent opinion of the First Circuit in S.E.C. v. Ficken, 2008 WL 4615797 (1st Cir. 2008), reflects the conventional wisdom that a defendant does not receive the benefit of the Rule 804 hearsay exceptions when he creates his own "unavailability" by claiming his Fifth Amendment right against self-incrimination. In Ficken, the SEC filed a civil complaint against Justin F. Ficken (“Ficken”) and others, alleging violations of 15 U.S. C. Section 77q(a), 15 U.S.C. Section 78j(b), and 17 C.F.R. Section 240.10b-5. Specifically, the SEC alleged that Ficken intentionally concealed his identity and the identities of his clients while trading shares of mutual funds, in order to mislead mutual fund companies into processing trades that they otherwise would not have allowed.
The district court granted the SEC's motion for summary judgment against Ficken after precluding him from presenting his exculpatory testimony given during an investigation proceeding conducted by the National Association of Securities Dealers ("NASD"), a private self-regulatory organization (now succeeded by the Financial Industry Regulatory Authority) with regulation and enforcement authority over securities firms under 15 U.S.C. Section 780-3. In addition to rendering this exculpatory testimony, however, Ficken also asserted his Fifth Amendment privilege or otherwise refused to answer questions regarding blocked customer account numbers. Ficken again invoked his Fifth Amendment right against self-incrimination during the SEC proceeding and then sought to introduce his prior exculpatory testimony under the former testimony exception to the rule against hearsay. The district court, however, found that this testimony was inadmissible hearsay, and the First Circuit affirmed.
The First Circuit noted that for the former testimony exception to apply, Ficken first had to be "unavailable" as defined in Federal Rules of Evidence 804(a)(1)-(5). And indeed, Ficken satisfied Federal Rule of Evidence 804(a)(1), which states that a declarant is "unavailable" when he "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement." The First Circuit found, however, that "[a]lthough this circuit has held that a witness invoking his Fifth Amendment privilege is unavailable under Rule 804,...this likely does not extend to defendants who create their own unavailability." As support for this argument, the First Circuit noted that "[o]ther circuits [including the 4th and 5th Circuits] have specifically held that a defendant does not become unavailable simply because he asserts his Fifth Amendment privilege."
This ruling makes sense to me. The Rule 804 hearsay exceptions exist so that a party can get the statements of a declarant before the jury when he is unfortunately unable to get that declarant to testify at trial. It thus makes no sense to apply them when the party himself voluntarily chooses not to testify at his own trial.
The First Circuit also noted that even if Ficken were "unavailable," the former testimony exception would not apply. That exception applies to:
"[t]estimony 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."
And while the First Circuit found that the NASD was the SEC's predecessor in interest, it found that the NASD did not have a full an fair opportunity to develop Ficken's testimony. And the reason it did not have this opportunity is that while Ficken answered some of NASD's questions, he invoked his Fifth Amendment right in response to some of its questions. Because the NASD could thus not fully develop Ficken's testimony, I also agree with the second conclusion by the First Circuit.
October 20, 2008
Lie Detector As Sentencing Tool, Take 2: Maryland Inmate Fails Polygraph Test, So His Sentence Won't Be Reduced
Back in August, I wrote about a strange ruling in which a Baltimore County judge gave convicted felon Trent L. Banks a chance to take a lie-detector test as part of the sentencing process. As I wrote back in August,
According to Judge Lawrence R. Daniels, "[t]he appellate courts say it can't come in [as evidence] as proof of guilt or innocence, and I certainly agree that the state shouldn't be able to say, 'He failed a polygraph so you should find him guilty on that basis.'" Judge Daniels noted, however, that private employers, the military, the federal government and even local prosecutors' offices routinely use lie-detector tests. According to Judge Daniels, "They use them as an investigatory tool. I'm just using it as a sentencing tool."
At the time, I cited Ortega v. United States, 270 F.3d 540, 548 (8th Cir. 2001), for the proposition that Judge Daniel's decision was "inconsistent with a consensus among courts against the use of polygraph evidence at the sentencing stage of trial." And I concluded that:
Maryland falls within that consensus. In its 1985 opinion in Johnson v. State, 495 A.2d 1 (Md. 1985), the Court of Appeal of Maryland dealt with a case where a reference was made to a polygraph test at a sentencing proceeding, and the trial judge overruled an objection to the reference. On appeal, the court found that this was error, citing to its 1984 opinion in Guesferid v. State, 480 A.2d 800, 803 (Md. 1984), for the proposition that "[t]here is no longer any doubt that in this State, the results of a lie detector test, as well as the fact of taking such a test, are inadmissible at trial." At first glance, I'm a bit confused by the facts of the Banks case, so I will look into them some more before doing a more detailed post on the case. But as I see things now, Judge Daniels' decision is clearly erroneous."
Well, erroneous or not, the polygraph test was administered as part of Banks' attempt to have his prison term reduced. And what are the facts underlying that attempt? Well, the facts of Banks' case are somewhat confusing, but basically, Banks was convicted of attempted murder and sentenced to 35 years imprisonment after he shot at his girlfriend and her friend. The shootings were also a violation of Banks' probation under prior convictions, leading to the imposition of two additional consecutive 5 year terms of incarceration. Subsequently,
"[i]n a highly unusual move, Daniels granted Banks’ request in August to take the polygraph in an effort to shave time off his five-year sentences. The judge made clear the results would have no impact on the [attempted] murder conviction and that passing did not automatically equal a sentence reduction."
Well, Banks hired Thompson, founder and director of the Maryland Institute of Criminal Justice in Millersville, to administer the test, but the test did not produce the results that he desired. "The examinee did not appear to be truthful," examiner Billy H. Thompson wrote in a test evaluation delivered to Judge Daniels in Baltimore County Circuit Court. Consequently, Judge Daniels did not have to decide whether to exercise his discretion and reduce Banks' sentence.
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.