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65. Is the witness's testimony in the criminal trial admissible in the civil action?
An investor who was allegedly defrauded by the scheme has now brought a civil action against the defendant. She seeks to introduce the witness's testimony from the criminal trial. The witness has moved to a foreign country.
A defendant was indicted for engaging in a fraudulent investment scheme. At the criminal trial, the prosecutor called a witness who had participated in the scheme with the defendant. The witness testified about the operation of the scheme and was cross-examined by the defendant's attorney. The case resulted in a mistrial.
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A is incorrect. The issues at trial do not need to be identical as long as there is a similar motive in the testimony. The factors that determine similar motive include: (i) the type of proceeding; (ii) trial strategy; (iii) the potential penalty; and (iv) the number of issues and parties. In this case, the defendant is the same. Although the second case is a civil suit, it still concerns the same acts of the defendant. Since the two cases are so similar, the witness's testimony would have likely been developed in the same or similar ways. Therefore, the testimony would be admissible.
B is incorrect. The rule does not require the identities of the parties to be identical. As long as the party against whom the former testimony is offered, or a predecessor in interest had an opportunity to examine the witness at the former hearing, the rule is satisfied. In this case, the witness was cross-examined by the defendant's attorney.
D is incorrect. A transcript of the proceeding or testimony of another witness who was present may be used to prove former testimony. The investigator does not need to show an attempt to obtain the testimony by deposition.