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Univ. of South Carolina School of Law

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Sunday, September 19, 2010

Primary Motive: Court Of Appeals Of Arizona Finds Former Testimony Exception Applied To Bond Hearing Testimony

Arizona Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Former testimony in criminal actions or proceedings as provided in Rule 19.3(c), Rules of Criminal
Procedure.

In turn, Rule 19.3(c) provides that

(1) Admissibility. Statements made under oath by a party or witness during a previous judicial proceeding or a deposition under Rule 15.3 shall be admissible in evidence if:

(i) The party against whom the former testimony is offered was a party to the action or proceeding during which a statement was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party now has (no person who was unrepresented by counsel at the proceeding during which a statement was made shall be deemed to have had the right and opportunity to cross-examine the declarant, unless such representation was waived) and

(ii) The declarant is unavailable as a witness, or is present and subject to cross-examination.

So, does a criminal defendant have an interest and motive to cross-examine a witness at a hearing to hold him without bond that is similar to the interest and motive that he has to cross-examine the witness at his criminal trial? According to the recent opinion of the Arizona Court of Appeals, Division 1 in State v. Acuna, 2010 WL 3597233 (Ariz.App. Div. 1 2010), the answer is "yes."

In Acuna, Pasqual Sosimo Acuna was convicted of charges arising out of a confrontation and drive by shooting on December 31, 2007. At a hearing to determine whether Pasqual would be held without bond, Rosario Acuna, Pasqual's alleged accomplice, testified against him. At trial, however, despite being subpoenaed by the State, Acuna failed to appear, prompting the State to introduce his prior testimony under Rule 19.3(c). After he was convicted, Pasqual appealed, claiming, inter alia, that he did not   have an interest and motive to cross-examine Rosario at the bond hearing similar to the interest and motive that he has to cross-examine Rosario at his criminal trial?

The Arizona Court of Appeals, Division 1 found that he did, finding that

To hold the defendant without bond, the court must find “that the proof is evident or the presumption great that the person committed the offense for which the person is charged.”...At the bond hearing, Appellant was represented by counsel, who took advantage of his opportunity to cross-examine Rosario....Appellant's interest and motive to cross-examine Rosario was similar to his interest and motive at trial....

Appellant argues that the brevity of his cross-examination of Rosario indicates he did not have a similar motive at the bond hearing. He contends the questioning was limited to the actions of the occupants of the other truck, rather than examining Rosario's credibility or motive to lie. Although Appellant's case strategy may have motivated him to limit his cross-examination at the bond hearing, his interest in refuting the prosecution's proof that he had committed the offense was similar to his interest in rebutting the prosecution's evidence at trial....For these reasons, we affirm the trial court's finding that Appellant had an opportunity to cross-examine Rosario and a similar motive to do so.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/09/804a5-state-v-acunanot-reported-in-p3d-2010-wl-3597233arizapp-div-12010.html

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