EvidenceProf Blog

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

Wednesday, April 21, 2010

Community Of Interest: Eleventh Circuit Fails To Reach "Predecessor In Interest" Ruling In Maritime Appeal

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

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.

So, who qualifies as a predecessor in interest? Unfortunately, that was a question left unanswered by the Eleventh Circuit in its recent opinion in Hearn v. McKay, 2010 WL 1490344 (11th Cir. 2010).

In McKay, Michael McKay was the National President of AMO, a maritime labor organization, from 1994 until early in 2007, and Robert McKay, Michael's brother, was its Secretary Treasurer from 1994 until 2006. The Department of Justice opened a criminal investigation to determine whether certain AMO officers used their positions to violate federal law, resulting in a federal grand jury indicting Michael and Robert McKay for participating in a RICO conspiracy involving theft and embezzlement from the union and from the benefit plans, mail fraud, and committing Labor Management Reporting and Disclosure Act (LMRDA) record keeping violations.

Members of the AMO later brought a civil action against the McKays and other defendants, asserting, inter alia, violations of the LMRDA. Two witness who had testified against the McKays at their criminal trial were unavailable at the civil trial, leading the plaintiffs to try to introduce their testimony under Federal Rule of Evidence 804(b)(1). The district court found that this former testimony exception was inapplicable because the McKays were mot predecessors in interest to the defendants in the civil trial. After the district court entered a default judgement against the McKays but granted partial summary judgment in favor of the other defendants, the plaintiffs appealed, claiming, inter alia, that the court erred in this evidentiary ruling.

The Third Circuit found however, that it did not need to "interpret the meaning of Rule 804(b)(1)'s "predecessor in interest" clause today" because "[e]ven if the district court erred by refusing to admit the prior testimony, that error was harmless." I wish that the court, though, had addressed the issue because

Courts have produced four different interpretations of the term 'predecessor in interest.' First, some courts have construed the term to mean common law privity. Second, under certain circumstances, courts have treated the United States government as the predecessor in interest of an individual bringing a related private action. Third, courts have determined that a governmental unit sharing a 'community of interest' with a party in a subsequent proceeding is a predecessor in interest of that party. Finally, some courts have viewed any party sharing a 'similar interest and motive' with a party in a subsequent proceeding as a predecessor in interest. Mark Lawrence, The Admissibility of Former Testimony Under Rule 804(b)(1): Defining a Predecessor in Interest, 42 U. Miami L. Rev. 975, 987 (1988).

My sense in that most courts have opted for this last interpretation, which would obviously seem at odds with the ruling of the district court in McKay. Unfortunately, based upon the Eleventh Circuit's opinion, however, we won't find out which how that court views the "predecessor in interest" clause



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