Former-Testimony Exception in the Proposed Federal Rules of Evidence, The

According to one member of the Advisory Committee which drafted them, the proposed Rules of Evidence for the United States Courts and Magistrates were promulgated to improve the truth-finding capacity of the courts, as well as to provide the benefits of simplification and uniformity. In much the same way that the Federal Rules of Civil Procedure have led to modernization of procedural rules in many states, the proposed Federal Rules of Evidence may be the vehicle by which improvements unsuccessfully codified in the Model Code of Evidence and the Uniform Rules of Evidence can finally be achieved across the United States. Thus, the goal which for a generation has eluded American reformers of evidence law-removal of some of the common-law impediments to the judicial search for truth-may finally be within reach. In view of this potential effect of the proposed Federal Rules, both the changes which they propose and those not made should be subjected to close scrutiny. The purpose of this article is to examine one small part of the codification effort, the provisions regarding the admissibility of former testimony taken by deposition or at a prior hearing. In undertaking this examination, particular attention will be focused upon the following three aspects of former testimony: (1) The motive and interest standard for ensuring trustworthiness of former testimony, and the manner in which its acceptance as a reform position has been adopted by the drafters without providing to the bench and bar sufficient guidance regarding its operation in practice; (2) the provisions of the proposed Federal Rules which would permit admission of prior testimony against its former proponent, another liberalization of current rules of evidence which has not heretofore been given close analysis; and (3) the retention by the Advisory Committee of the unavailability requirement, a situation in which modernization was explicitly rejected. Analysis will indicate that such rejection was perhaps the result of constitutional concerns, and the validity of these concerns will be reviewed. Constitutional aspects of related formertestimony situations also will be examined