Rule 804(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is
unavailable as a witness.
- Former testimony. Testimony given as a witness at another hearing of the same or 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 had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. A record of testimony given before courts-martial, courts of inquiry, military commissions, other military tribunals, and before proceedings pursuant to or equivalent to those required by Article 32 is admissible under this subdivision if such a record is a verbatim record. This paragraph is subject to the limitations set forth in Articles 49 and 50.- The foundational requirements are: The first hearing was a fair one; the witness
testified under oath at the first hearing; the opponent was a party in the first
hearing; the opponent had an opportunity to develop the witness’ testimony; the
opponent had a motive to develop the witness’ testimony at the first hearing; the
witness is unavailable; and there is a verbatim transcript of the first hearing. - Despite wording of Rule 804(b)(1), admissibility of Article 32 testimony under
former testimony exception depends on opponent’s opportunity to cross-exam,
not whether cross-examination actually occurred or the intent of the crossexaminer.
United States v. Connor, 27 M.J. 378 (C.M.A. 1989); United States v.
Hubbard, 28 M.J. 27 (C.M.A.), cert. denied, 493 U.S. 847 (1989). United States
v. Austin, 35 M.J. 271 (C.M.A. 1992): UCMJ art. 32 testimony was admitted
under Rule 801(d)(1)(A) and 804(b)(1). After the testimony was read to the
members, they were permitted to take it into deliberations, over defense
objection. Analogizing to a deposition, which is not taken into deliberations (See
R.C.M. 702(a), Discussion), COMA concluded the verbatim Article 32 testimony
was not an “exhibit” within the meaning of R.C.M. 921(b). See also United
States v. Montgomery, CM 9201238, (A.C.M.R. 28 July 1994) (per curiam)
(unpub.), the A.C.M.R. applied a similar analysis to a verbatim transcript of a
prior trial.
- The foundational requirements are: The first hearing was a fair one; the witness