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Criminal Justice Magazine

Winter 2025

Similar Motive and Former Testimony

Stephen A Saltzburg

Summary

  • Former testimony requires a party to have a similar motive when examining a witness in a prior proceeding as the motive to examine that witness at trial.
  • The government’s motive in questioning a witness before a grand jury is not always similar to its motive in questioning the same witness at trial.
  • Evidence that becomes available only after a witness testifies in a prior proceeding might provide a different motive to question the witness at trial.
  • Courts take different approaches to the “similarity” question; some focus on a party’s fundamental objective in a former proceeding and at trial, while others focus on whether the scope and intensity of questioning in the former proceeding.
Similar Motive and Former Testimony
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The Rule

Federal Rule of Evidence 804(b)(1) creates a hearsay exception for former testimony. The proponent must show that the declarant is unavailable to testify and demonstrate also that the declarant previously provided testimony that

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

It is usually a simple matter to satisfy (A) and show that the declarant previously provided testimony as a witness in a trial, hearing, or lawful deposition. But the trick in satisfying (B) is showing “similar motive,” which is not always easy.

An Illustrative Case

United States v. Euring illustrates the care that is required in deciding whether the party against whom former testimony is offered previously had a similar motive to examine the declarant. 112 F.4th 545 (8th Cir. 2024). The defendant was charged with sex trafficking a minor, S.G.

In November 2018, 16-year-old S.G. was reported missing, and when she showed up at her Iowa school the next day, the school resource officer interviewed her and noticed that she seemed intoxicated. S.G. told the resource officer that she had spent the weekend in Chicago at “Sweat’s” father’s home, first claimed she had made $2,000 packaging cocaine, and later said that she had made $6,000 to $7,000. S.G. told the resource officer that she had refused to go to Chicago to have sexual encounters, denied having sex with “Sweat,” and claimed she would never do so. After first saying that the previous weekend was her first trip to Chicago with “Sweat,” she then admitted that she had also been there the weekend before and described three dates during the first weekend in which she earned either $1,500 or $1,700, of which $200 went to “Sweat.” She denied engaging in any sex acts and said that she used cocaine during the second trip to Chicago and either lost her memory or became unconscious. She also claimed she had been held captive by two Middle Eastern men before she escaped through a window and took two Uber rides to get home.

The resource officer presented S.G. with a photo lineup that did not include Euring, and she made no identification. Police ran a search on the phone number associated with “Sweat” and prepared a second photo lineup containing Euring’s photo, and S.G. identified Euring as a photo of “Sweat.”

Later in interviews with medical personnel and police, she stated that she had given Euring $500 of the $1,700 she earned, rather than $200, and that Euring had in fact paid her $600 for sex. Law enforcement officers continued investigating; searched S.G.’s phone and obtained records from her service provider; discovered that someone had created a profile for S.G. on a dating site and S.G. communicated with men she connected with through the site; “her phone contained recordings of a male voice she identified as Euring’s stating some aspects of her profile; and her profile stated that she “offer[ed] massages and happy endings.” Law enforcement viewed hotel and car rental records to infer that Euring had taken S.G. to Chicago, to discover that S.G.’s statements about escaping a captive situation were false, and to learn that she had ended her second weekend in Chicago by spending a few days with a Dr. Muhammad Ali who had brought her back to Iowa.

Prior to trial, the defense tried unsuccessfully to find Dr. Ali, who might have left the United States. So, the defense sought to introduce Dr. Ali’s grand jury testimony at trial, arguing that the government had the same motive before the grand jury as at trial, while the government objected.

The district court sustained the government’s objection. It ruled that the government was in an early stage of the investigation when Dr. Ali testified, so its motive in examining him there was different from its motive at trial and the testimony contained no “indicia of reliability,” and the government would have intensely cross-examined Dr. Ali at trial on the basis of information it did not have during the grand jury testimony.

A jury convicted Euring of sex trafficking a minor.

The Appeal

Euring argued on appeal that Dr. Ali’s testimony was crucial to the defense for several reasons:

  • Dr. Ali’s relationship with S.G. predated the alleged trafficking;
  • Dr. Ali met S.G. through another dating website rather than through the dating profile associated with Euring; and

S.G. spent three days at Dr. Ali’s home during one of the trips when Euring allegedly trafficked her.

Thus, Dr. Ali’s grand jury testimony supported a defense that the relationship between Dr. Ali and S.G. was not the result of trafficking by Euring, but was independent of him. In short, the government’s position was that Dr. Ali’s grand jury testimony only helped Euring if it were true, and it was in fact untrue.

The court of appeals found no abuse of discretion in the exclusion of Dr. Ali’s grand jury testimony. It observed that “[o]ur circuit has compared motives case-by-case,” “[b]ut we have not previously prescribed an analytical rubric for determining the presence of a similar motive for the admission of prior testimony of an unavailable witness.”

The court looked to decisions by the Second and Ninth Circuits on the question of similar motive. It noted that “the Second Circuit considers whether the government ‘had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue.’” 112 F.4th at 552 (quoting United States v. DiNapoli, 8 F.3d 909, 914–15 (2d Cir. 1993) (en banc)). The court noted that DiNapoli identified the “the low burden of proof at the grand jury stage” and the “public interest in not disclosing prematurely the existence of surveillance techniques,” and that these factors could distinguish the government’s motive before the grand jury from its motive at trial.

It noted that the Ninth Circuit considers similar motive “at a high level of generality” and focuses on the government’s “fundamental objective.” United States v. McFall, 558 F.3d 951, 962 (9th Cir. 2009). “In McFall, the Ninth Circuit held that a grand-jury transcript should have been admitted because ‘the government’s fundamental objective in questioning [the witness] before the grand jury was to draw out testimony that would support its theory that [the defendant] conspired with [the witness] to commit extortion—the same motive it possessed at trial.’” Euring, 112 F.4th at 552.

With these decisions from sister circuits as background, the court held that “a party seeking the admission of prior testimony must show that the other party’s motive at the time of the prior testimony was substantially similar in both scope and intensity to the motive at the time of trial,” “[b]ut the court need not ‘compar[e] [the two] motives at a fine-grained level of particularity.’” Id. (quoting McFall, 558 F.3d at 962).

The court applied its holding to the Euring facts:

In this case, the district court did not abuse its discretion in determining that the government’s motive to cross-examine Dr. Ali before the grand jury was dissimilar to its motive at the time of trial. In a broad sense, the government may have had the same purpose in questioning Dr. Ali before the grand jury as it would have had at trial—to incriminate Euring. But an identity of overarching purpose is not conclusive on the question of motive. Although the government had some information about Dr. Ali’s activities at the time of his testimony, the government proffered that S.G. had not yet told investigators about Dr. Ali when he testified. In fact, two years elapsed before S.G. told the government that Dr. Ali had forced her to use cocaine, tied her hands, and refused to let her leave. . .

Additionally, Dr. Ali’s testimony differed from evidence adduced at trial. Dr. Ali presented himself as someone who was trying to help S.G. and who had no knowledge that S.G. was using drugs. But S.G. testified that she had used cocaine with him, she had felt unsafe in his home, and he had threatened her. Although the government challenged Dr. Ali’s grand-jury testimony on some points, it was not primarily concerned with impeaching him. . .

The government’s incomplete information at the time of Dr. Ali’s testimony limited the scope of the government’s questioning, suggesting that the government’s motives before the grand jury and at trial were not substantially similar. And the inconsistency between Dr. Ali’s testimony and the evidence at trial, as well as the government’s higher burden of proof at trial, suggests that the government would have been motivated to question him with greater intensity at trial. . .

Id. at 553 (emphasis added; transcript citation omitted).

Lessons

Three principal lessons emerge from Euring:

Prosecutors might have different motives in eliciting grand jury testimony and in eliciting trial testimony, and the timing of the grand jury testimony can be important in evaluating similar motive.

It is vital to distinguish between the overarching purpose of eliciting grand jury testimony from the specific motive of prosecutors at the time they questioned a grand jury witness.

The discovery of information after a grand jury witness testifies might suggest a motive at trial to question the witness differently than before the grand jury.

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