University of Miami Law Review
Volume 42
Number 4
Volume 42 Issues 4-5 (March-May 1988)
Special Topics in the Law of Evidence

Article 6

5-1-1988

The Admissibility of Former Testimony Under Rule 804(b)(1):
Defining a Predecessor in Interest
Mark Lawrence

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Recommended Citation
Mark Lawrence, The Admissibility of Former Testimony Under Rule 804(b)(1): Defining a Predecessor in
Interest, 42 U. Miami L. Rev. 975 (1988)
Available at: https://repository.law.miami.edu/umlr/vol42/iss4/6

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The Admissibility of Former Testimony Under
Rule 804(b)(1): Defining a Predecessor
in Interest
I.
II.
III.
IV.

V.
VI.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
THE COMMON LAW APPROACH TO FORMER TESTIMONY . . . . . . . . . . . . . . . . . .
THE ADMISSIBILITY OF FORMER TESTIMONY UNDER THE FEDERAL RULES
OF EVIDENCE ................... .'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CURRENT INTERPRETATIONS OF THE TERM "PREDECESSOR IN INTEREST" . . .
A. The Privity Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. The Government Agency--Private Plaintiff Interpretation . . . . . . . . . . . . . . . .
C. The "Community of Interest" Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. The "Similar Interest and Motive" Interpretation. . . . . . . . . . . . . . . . . . . . . . .
THE "SUFFICIENTLY CLOSE RELATIONSHIP" ANALYSIS . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I.

975
978
981
987
988
992
994
998
lCXlO
1007

INTRODUCTION

During a trial, a party may, under certain circumstances, offer
the testimony of a witness taken during an earlier stage of the same
proceeding, or in a prior proceeding. 1 Although the adverse party
could otherwise object to such evidence as hearsay, Rule 804(b)(l) of
the Federal Rules of Evidence recognizes a hearsay exception for former testimony2 if the witness is "unavailable," 3 because such testimony does not suffer from most of the defects traditionally associated
with hearsay. 4 If, as the Rule requires, the now unavailable witness
had testified under oath subject to the penalty of perjury, and his testimony was tested, or at least could have been tested, by cross-examina1. Former testimony includes statements made at a deposition, hearing, or trial in an
earlier stage of the same or a prior proceeding. See FED. R. Evm. 804(b)(l).
2. Rule 804(b)(l) defines former testimony as follows:
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.
FED. R. Evm. 804(b)(l).
3. Under Rule 804(a), a witness is "unavailable" if the witness (1) claims a privilege;
(2) refuses to testify; (3) claims a lack of memory; (4) dies or is suffering from a then existing
physical or mental illness; or (5) fails to attend and his attendance cannot be procured by
process or other reasonable means. FED. R. Evm. 804(a).
4. See FED. R. Evm. 804(b)(l) advisory committee's note, 56 F.R.D. 183, 323; C.
McCoRMICK, HANDBOOK OF THE LAW OF EVIDENCE§ 245, at 581 (2d ed. 1972).

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tion in the prior proceeding, then the concerns regarding lack of
trustworthiness are obviated. Former testimony, however, does suffer
from the third defect traditionally associated with hearsay: the inability to observe the witness' demeanor. 5 Nonetheless, efficiency concerns often dictate that courts admit former testimony, which is
usually trustworthy and probative.
In civil cases, 6 Rule 804(b)(l) permits the proponent to offer former testimony against a party to the prior proceeding, or against a
party whose "predecessor in interest" 7 had an opportunity and similar
motive to examine the witness in the prior proceeding. 8 The legislative history indicates that Congress adopted the predecessor-in-interest requirement as a means of protecting the fairness interests of the
party opposing admission of the former testimony in the subsequent
proceeding. 9 Congress apparently believed that it was fair to bind a
party in a subsequent proceeding if the trustworthiness of the former
testimony had been established by a witness taking an oath, and the
party or his predecessor challenged the testimony during direct, cross,
or redirect examination. If these two conditions were satisfied, the
court could admit the former testimony, and thereby preclude the
factfinder from observing the witness' demeanor in the subsequent
proceeding.
5. FED. R. Evm. 804(b)(I) advisory committee's note, 56 F.R.D. 183, 323.
6. The predecessor-in-interest exception is inapplicable in criminal proceedings because
the confrontation clause of the Sixth Amendment guarantees that "[i)n all criminal
prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against
him." U.S. CONST. amend. VI. The predecessor-in-interest exception, however, applies in a
civil proceeding that is based on a prior criminal proceeding. E.g., Pacelli v. Nassau County
Police Dep't, 639 F. Supp. 1382 (E.D.N.Y. 1986); Carpenter v. Dizio, 506 F. Supp. 1117 (E.D.
Pa.), aff'd, 673 F.2d 1298 (3d Cir. 1981); Travelers Fire Ins. Co. v. Wright, 322 P.2d 417
(Okla. 1958). But see In re Screws Antitrust Litig., 526 F. Supp. 1316 (D. Mass. 1981)
(Testimony in criminal antitrust proceeding is not admissible against subsequent civil
defendants who were not defendants in the prior criminal proceeding.).
7. The term "predecessor" is defined as the "correlative of successor." BLACK'S LAW
DICTIONARY 1060 (5th ed. 1979). The term "successor in interest" is defined as "[o]ne who
follows another in ownership or control of property." Id. at 1283 (emphasis added). Rule
32(a)(4) of the Federal Rules of Civil Procedure permits a deposition from a prior action to be
offered in a subsequent action invo~ving the "same parties or their representatives or successors
in interest." FED. R. C1v. P. 32(a)(4). Rule 32(a)(4) permits a party to offer deposition
testimony from a prior action in a subsequent action; hence the term "successor in interest."
Rule 804(b)(I), in contrast, permits the admission of testimony from a prior proceeding
against a party who was represented by a party in a prior proceeding; hence the term
"predecessor in interest." One author has suggested an "amendment of Rule 32(a)(4) to reflect
the language of Rule 804(b)(I)." Comment, Admissibility of Prior-Action Depositions and
Former Testimony Under Fed. R. Civ. P. 32(a)(4) and Fed. R. Evid. 804(b)(J): Courts Differing
Interpretations, 41 WASH. & LEE L. REV. 155, 183 n.234 (1984).
8. See FED. R. Evm. 804(b)(I). The examination of the witness in the prior proceeding
may have been by direct, cross, or redirect examination. See FED. R. Evm. 804(b)(I).
9. See infra notes 59-62 and accompanying text.

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ADMISSIBILITY OF FORMER TESTIMONY

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Despite the term "predecessor in interest" in Rule 804(b)(l) and
the Rule's legislative history, most federal courts employ analytical
approaches that in effect ignore the predecessor-in-interest requirement. 10 These courts rely instead on the trustworthy nature of the
former testimony itself; i.e., because the witness was under oath and
cross-examined by a person whose motive in developing the testimony
was similar to that of the person against whom the testimony is being
offered, these courts will admit the former testimony. Such an
approach demonstrates that these courts are singularly concerning
themselves with efficiency at the expense of the evidentiary concern of
fairness. Consequently, the term "predecessor in interest," which
appears in the rule's text, has become a dead letter.
Neither Rule 804(b)(l) nor its legislative history defines the term
"predecessor in interest." Furthermore, the term had little, if any,
meaning at common law. Courts applying the rule have therefore had
to construe its meaning. Rule 102 of the Federal Rules of Evidence
requires courts to construe all of the Rules, including Rule 804(b)(l),
in a manner that promotes efficiency and secures fairness in the
administration of justice. 11 The legislative history, however, indicates
that Congress intended fairness to be of primary importance in determining whether Rule 804(b)(l)'s predecessor-in-interest requirement
is satisfied. To the extent that courts disregard the fairness considerations underlying Rule 804(b)(l), they are violating the intent of the
rule.
This Comment focuses upon the federal courts' neglect of the
predecessor-in-interest requirement for the admission of former testimony. Section II explores the common law requirements for the
admission of former testimony. At common law, former testimony
could be admitted against a party to the prior proceeding or his privy,
representative, or successor in interest. Section III of this Comment
analyzes Rule 804(b)(l)'s legislative history and, more particularly,
the role that fairness should play in determining whether the predecessor-in-interest requirement is satisfied. Section III also argues that
10. Although some federal courts have employed analytical approaches that give meaning
to the predecessor-in-interest language, most have 'held that the predecessor-in-interest
requirement is satisfied if any person possessing a similar motive developed the testimony in a
prior proceeding. See infra notes 85-86. Rule 804(b)(I), however, permits former testimony to
be offered against a party who was not a party to the prior proceeding only if a predecessor in
interest possessed a similar motive to develop the testimony. FED, R. Evm. 804(b)(l). Most
federal courts, therefore, have rendered the predecessor-in-interest language meaningless.
1I. FED. R. Evm. 102. Rule 102 provides: "These rules shall be construed to secure
fairness in administration, elimination of unjustifiable expense and delay, and promotion of
growth and development of the law of evidence to the end that the truth may be ascertained
and proceedings justly determined." Id. (emphasis added).

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the legislative history indicates that Rule 804(b)( 1) should parallel the
use of prior action depositions under Rule 32 of the Federal Rules of
Civil Procedure. Section IV analyzes the current interpretations of
the term "predecessor in interest." Most federal courts either disregard the requirement altogether or employ an analytical approach
that purports to give meaning to the requirement, but in fact ignores
it. Section V explores the sufficiently-close-relationship requirement
that is found in the res judicata area. It argues that the sufficientlyclose-relationship analysis is applicable in the former testimony context. Finally, this Comment proposes that courts admit former testimony against a party who was not a party to the prior proceeding
only if that party and his predecessor in interest enjoy a sufficiently
close relationship.
II.

THE COMMON LAW APPROACH TO FORMER TESTIMONY

Until the late 1800's, the case law employed a "mutuality of the
parties" requirement. Under this approach, both the party offering
the former testimony and the party against whom this testimony was
offered in the subsequent proceeding had to have been parties to the
prior proceeding-or at least in privity 12 with a party to the prior
proceeding. 13 In Metropolitan Street Railway v. Gumby, 14 for example, an infant was injured in an automobile accident. 15 The infant's
12. The Second Circuit has defined privity as follows:
Mutual or successive relationships to the same rights of property, and privies are
distributed into several classes, according to the manner of this relationship.
Thus, there are privies in estate, as donor and donee, lessor and lessee, and joint
tenants; privies in blood, as heir and ancestor, and co-parceners; privies in
representation, as executor and testator, administrator and intestate; privies in
law, where the law, without privity of blood or estate, casts the land upon
another, as by escheat.
Metropolitan St. Ry. v. Gumby, 99 F. 192, 198 (2d Cir. 1900).
13. See, e.g., Atlanta & West Point R.R. v. Venable, 67 Ga. 697, 697-700 (1881) (allowing
a child to offer interrogatories that were taken in a prior proceeding brought by his mother
against the same defendant). The English rule was similar. See, e.g., Morgan v. Nicholl, 15
L.R. 184 (C.P. 1866) (holding that testimony from a prior proceeding brought by a son could
not be offered by his father in a subsequent proceeding against same defendant because the
same parties were not offering the testimony). Until the mid 1800's, it was universally
accepted that it was against natural justice to admit former testimony unless both the
proponent and opponent of the former testimony were parties to the prior proceeding. See F.
BULLER, AN INTRODUCTION TO THE LAW RELATIVE TO TRIALS AT NISI PRIUS 239-40
(1775); G. GILBERT, THE LAW OF EVIDENCE 47-48 (1795). After the mid 1800's, the "first
principles of justice" dictated that former testimony be admitted if both the proponent and
opponent were parties to the prior proceeding, or in privity with such a party. Lane v.
Brainerd, 30 Conn. 565, 579 (1862), cited with approval in Note, Fairness v. Trustworthiness:
The Predecessor in Interest Controversy of Rule 804{b)(J), I B.Y.U. L. REV. 79, 92 n.79 (1984).
14. 99 F. 192 (2d Cir. 1900).
15. Id. at 193.

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ADMISSIBILITY OF FORMER TESTIMONY

979

grandmother, his guardian, brought an action on her, own behalf for
loss of the infant's services and pain and suffering. 16 The infant's
grandmother sought to offer an eyewitness' testimony taken in a prior
proceeding brought on the infant's behalf by his previous guardian. 17
The Second Circuit reversed, holding that the grandmother could not
offer the testimony. 18 The court reasoned that it should not permit
the grandmother to offer the testimony against the defendant because
the defendant could not have offered the testimony against the grandmother, 19 who was not in privity with the infant. 20
In Rumford Chemical Works v. Hygienic Chemical Company of
New Jersey, 21 the Supreme Court of the United States implicitly
rejected the mutuality-of-the-parties requirement in favor of permitting a party to offer former testimony against a party to a prior proceeding, or those in privity 22 with a party to a prior proceeding. 23 The
plaintiff in Rumford Chemical had established the validity of its baking powder patent in a prior suit. 24 In the subsequent proceeding,
Rumford Chemical sought to use the prior finding of patent validity
to estop collaterally two alleged infringers from contesting the patent's validity. 25 Although the two alleged infringers were not parties
to the prior suit that established the patent's validity, 26 Rumford
Chemical sought to use the deposition of the deceased president of a
16. Id.
17. Id. at 199.
18. Id.
19. Id.
20. Id.
21. 215 U.S. 156 (1909).
22. For a definition of privity, see supra note 12.
23. See, e.g., Tappan v. Beardsley, 77 U.S. (10 Wall.) 427, 435 (1870) (holding that
depositions from a prior proceeding were not admissible against one who was neither a party
nor in privity with a party to the prior proceeding); Rutherford v. Geddes, 71 U.S. (4 Wall.)
220, 224 (1866) (holding that depositions from a prior proceeding were not admissible against
one who was neither a party nor in privity with a party to the prior proceeding); see also J.
APPLETON, RULES OF EVIDENCE 214 (1860) (A deposition from a prior proceeding is
admissible against a party to the prior proceeding, or against those whose interests were
represented in the prior proceeding.).
24. Rumford Chem., 215 U.S. at 159. Rumford Chemical sought to collaterally estop two
alleged infringers: Hygienic Chemical Co. of New Jersey and Hygienic Chemical Co. of New
York. Id. at 158.
25. Id. at 158-59.
26. Id. at 159-60. Hygienic Chemical Co. of New York contributed to the expenses of
defending the prior suit. Id. at 160. Rumford Chemical argued that both of the Hygienic
defendants were in privity with the defendant in the prior suit because Hygienic of New York
had contributed to the expenses of defending the prior suit. Id. The Supreme Court, however,
rejected this argument because, although the Hygienic defendants had a business interest in the
prior suit's outcome, neither of the Hygienic defendants had any control over the conduct of
the prior case. Id.

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company involved in the prior suit. 27 The Supreme Court affirmed
the trial court's exclusion of the former testimony because neither of
the corporate defendants against whom the testimony was offered
were parties or privies of parties to the prior proceeding. 28
After Rumford Chemical, courts no longer examined who was
offering the testimony because, as illustrated in Metropolitan Street
Railway v. Gumby, 29 that approach unfairly precluded a party from
offering testimony admitted against the same defendant in a prior proceeding. 30 If Gumby had arisen after the Court rejected the mutuality
requirement in Rumford Chemical, the deceased witness' testimony
presumably would have been admitted in the subsequent proceeding
brought by the grandmother because the proponent offered it against
the same party in both proceedings. 31
A decade later, courts began to ease these requirements and a
proponent could offer former testimony not only against a party to
the prior proceeding, but also against a party who was "substantially
the same" as a party in the prior proceeding. 32 This approach was
illustrated in Virginia & West Virginia Coal Co. v. Charles, 33 in which
the plaintiff sought to eject the defendant from a tract of land claimed
by the defendant. 34 The plaintiff attempted to introduce two depositions that supported its chain of title. 35 The depositions had been
taken in a previous ejectment action concerning the same parcel of
land, but involving different parties. 36 The United States District
Court for the Western District of Virginia admitted the former testimony even though the party against whom it was being offered, the
defendant, was unrelated to the parties in the prior proceeding. 37 The
27. Id. at 159.
28. Id. at 160.
29. 99 F. at 192. For a discussion of this case, see supra notes 13-19 and accompanying
text.
30. C. McCORMICK, supra note 4, at 488.
31. Gumby, 99 F. at 190.
32. E.g., Metropolitan St. Ry. v. Gumby, 99 F. 192 (2d Cir. 1900); see Anderson v.
Hultberg, 247 F. 273, 278 (8th Cir.), cert. denied, 248 U.S. 581 (1918); I W. BEST, A
TREATISE ON THE PRINCIPLES OF EVIDENCE§ 32, at 42 (1849); 2 C. CHAMBERLAYNE, A
TREATISE ON THE MODERN LAW OF EVIDENCE §§ 1672-1675, at 2145-48 (1911); 2 8.
ELLIOTT & w. ELLIOTT, THE LAW Of EVIDENCE § 508, at 594-95 (1904) [hereinafter B.
ELLIOTT]; s. GREENLEAF, A TREATISE ON THE LAW Of EVIDENCE § 163a, at 278-79 (J.
Wigmore 16th ed. 1899); I T. HUGHES, AN ILLUSTRATED TREATISE ON THE LAW OF
EVIDENCE§ 5, at 59 (1907); I 8. JONES, THE LAW Of EVIDENCE IN CIVIL CASES§§ 337-338,
at 618-19 (1938).
33. 251 F. 83 (W.D. Va. 1917).
34. Id. at 99.
35. Id. at 116-17.
36. Id.
37. Id.

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ADMISSIBILITY OF FORMER TESTIMONY

981

court held that the substantially-the-same parties requirement was
satisfied because it could not "summon [the] witnesses from the
grave." 38 From this questionable premise, the court stated that this
was consequently "a time when the rules of evidence must be
relaxed." 39
Other courts did not construe the substantially-the-same-parties
standard as broadly as Virginia & West Virginia Coal Co. v. Charles. 40
The commentators agreed, however, that the standard encompassed
privies,4 1 representatives, 42 and successors in interest. 43 Former testimony, therefore, was admissible against a person who was not a party
to the prior proceeding, if his legal relationship with the person who
previously had cross-examined the now unavailable witness satisfied
the substantially-the-same-parties standard.

III.

THE ADMISSIBILITY OF FORMER TESTIMONY UNDER THE
FEDERAL RULES OF EVIDENCE

The Supreme Court of the United States originally proposed a
version of Rule 804(b)(l) that adopted the "similar motive and inter38. Id. (citation omitted). The court stated that the substantially-the-same-parties rule
prevailed in Virginia, whose law controlled the case. Id.
39. Id. (citation omitted).
40. See, e.g., Metropolitan St. Ry. v. Gumby, 99 F. 192, 199 (An infant and his
grandmother are not in privity, therefore they are not substantially the same parties.);
Anderson v. Hultberg, 247 F. 273, 278 (8th Cir.) (holding that former testimony from
husband's proceeding was not admissible against his wife in a subsequent proceeding because a
husband and wife are not in privity), cert. denied, 248 U.S. 581 (1918).
41. See, e.g., S. GREENLEAF, supra note 32, at 278-79. For a definition of privity, s~ supra
note 12.
42. See, e.g., T. HUGHES, supra note 32, § 5, at 59. A representative is "[o]ne who
represents or stands in the place of another." Examples include a "receiver, liquidator,
executor, administrator, guardian or tutor, but not an agent." BLACK'S LAW DICTIONARY
1466 (rev. 4th ed. 1968) (quoting Husers v. Papania, 22 So. 2d 755, 757,(La. Ct. App. 1945)).
43. See, e.g., C. CHAMBERLAYNE, supra note 32, at 2130. A successor in interest is "[o]ne
who follows another in ownership or control of property." BLACK'S LAW DICTIONARY 1283
(5th ed. 1979). The term "successor in interest" has also been defined in the following manner:
In order to be a "successor in interest", a party must continue to retain the same
rights as the original owner without change in ownership and there must be
change in form only and not in substance, and transferee is not a "successor in
interest." In the case of corporations, the term ordinarily indicates statutory
succession as, for instance, when corporation changes its name but retains same
property.
BLACK'S LAW DICTIONARY 746 (abrid. 5th ed. 1983) (citations omitted). Arguably, a family
member may also qualify as a successor in interest. See, e.g., Briggs v. Briggs, 80 Cal. 253, 22
P. 334 (1889) (holding that sons were successors in interest of their father and were therefore
permitted to offer the father's deposition in a subsequent proceeding). A representative, on the
other hand, often denotes an executor or a wrongful death plaintiff. See infra notes 93 & 95.

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est" test. 44 Dean Wigmore45 first advanced this test, which a few
courts and commentators adopted prior to the enactment of the Federal Rules of Evidence. 46 Under this test, a judge could admit testimony from a prior proceeding if any party possessing a similar
interest and motive had an opportunity to cross-examine the now
unavailable witness in the prior proceeding. 47
Prior to the Federal Rules of Evidence, courts generally
employed the similar-interest-and-motive test only if the proponent
offered former testimony against a party to the prior proceeding. 48
The admission of former testimony against a nonparty and the related
fairness concerns were rarely at issue. In Insul-Woo/ Insulation Corp.
v. Home Insulation, 49 for example, Insul-Wool had failed in a prior
suit to establish the validity of its patent concerning a packing and
insulation material. 50 In the prior suit, the trial court had sustained
the defendants' affirmative defense that they had known of and used
the product for two years before the plaintiff patented it. 51 In the
subsequent proceeding, Insul-Wool again sought an injunction and
damages for an alleged infringement of its patent. 52 Although the
alleged infringer, Home Insulation, was not a party to the prior suit, 53
Home Insulation sought to use depositions that the defendants had
taken and which the district court admitted in the prior proceeding. 54
The United States Court of Appeals for the Tenth Circuit affirmed,
admitting the depositions because Insul-Wool had the same interest
and motive for cross-examining the deponents as it had in the prior
proceeding. 55
The similar-interest-and-motive test focuses solely on the crossexamination in the prior proceeding, and therefore, is largely predicated upon the similarity of legal issues and facts between the prior
and subsequent proceedings. 56 Sim1lar legal issues and facts presuma44. COMMUNICATION FROM THE CHIEF JUSTICE OF THE UNITED STATES, H.R. Doc.
No. 46, 93d Cong., 1st Sess. 33 (1973).
45. 2 J. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW§ 1388, at 1733 (1904).
46. See, e.g., lnsul-Wool Insulation Corp. v. Home Insulation, Inc., 176 F.2d 502, 503
(10th Cir. 1949); see C. McCORMICK, supra note 4, § 256, at 620.
47. See C. McCORMICK, supra note 4, § 256, at 620; J. WIGMORE, supra note 45, at 1733.
48. Insul-Wool, 176 F.2d at 502.
49. Id.
50. Id. at 503.
51. Id.
52. Id.
53. Id.
54. Id.
55. Id. at 504.
56. See, e.g., Mid-City Bank & Trust Co. v. Reading Co., 3 F.R.D. 320, 322-23 (D.N.J.
1944) (holding that a prior action deposition was admissible in a subsequent proceeding

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ADMISSIBILITY OF FORMER TESTIMONY

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bly make the former testimony sufficiently trustworthy. Moreover,
efficiency concerns dictate that such testimony be admitted to avoid
duplicative litigation. 57 This test consequently ignores the parties
involved in each proceeding. In cases such as Insu/-Woo/, 58 however,
in which a party offers testimony against a party to the prior proceeding, this does not present a problem because the opportunity-forcross-examination requirement is satisfied.
Although the Supreme Court proposed a liberal test under which
former testimony would be admissible against a party if'another party
with a similar interest and motive had examined the witness in a prior
proceeding, the House Committee on the Judiciary added the more
stringent requirement that the party to the prior proceeding must
have been a predecessor in interest. 59 The committee noted that it
was "generally unfair to impose upon the party against whom the
hearsay evidence is being offered responsibility for the manner in
which the witness was previously handled by another party." 60 The
committee recognized the unfairness of "impos[ing] the examination
of another, and with it the quality of the attorney selected, tactical
decisions, access to information, and state of preparation upon a nonparty to the litigation." 61 To protect this panoply of interests, the
committee limited the admission of former testimony to that of a
party to the prior proceeding,. or of a party whose predecessor in
because the issues were identical, and thus the prior party had a similar interest and motive to
cross-examine). Even after Congress explicitly rejected a similar interest and motive test,
many courts and commentators have continued to rely on the similarity of issues and facts in
both proceedings as the sole basis for admitting former testimony. See infra notes 59-62 and
accompanying text; see also Oberlin v. Marlin Am. Corp., 596 F.2d 1322, 1329 (7th Cir. 1979)
(holding that a prior action deposition was inadmissible under Rule 804(b)(l) because the
issues were different and thus the prior party did not have a similar interest and motive to
cross-examine); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1190, 1252
(E.D. Pa. 1980) (stating that Rule 804(b)(l)'s similar interest and motive requirement is
predicated largely upon the similarity of issues in the prior and subsequent proceedings); C.
McCoRMICK, supra note 4, § 257, at 620-22 (arguing that the issues in the prior proceeding
must have been similar to the issues in the subsequent proceeding to ensure similar motive for
cross-examination in the prior proceeding); 11 J. MOORE, MOORE'S FEDERAL PRACTICE
§ 804.04(3), at 266-67 (2d ed. 1985) (arguing that courts should focus on the issues involved in
both proceedings to determine if the prior party had a similar motive to cross-examine).
51. See C. McCORMICK, supra note 4, § 256, at 620; J. WIGMORE, supra note 45, § 1388,
at 1733-35; Note, Affidavits, Depositions, and Prior Testimony, 46 IOWA L. REV. 356, 363-64
(1961).
58. lnsul-Wool Insulation Corp. v. Home Insulation Inc., 176 F.2d 502, 503 (10th Cir.
1949).
59. Federal Rules of Evidence: Hearings on H.R. No. 650 Before the House Comm. on the
Judiciary, 93d Cong., 1st Sess. 15 (1973), reprinted in 1974 U.S. CODE CONG. & ADMIN.
NEWS 7075, 7088.
60. Id.
61. M. GRAHAM, EVIDENCE TEXT, RULES, ILLUSTRATIONS AND PROBLEMS 257 (1981).

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interest had an opportunity and similar motive to develop the testimony in a prior proceeding. 62
In approving the House's version of the proposed Rule, the Senate report stated that "there was not much difference" between the
version proposed by the Supreme Court of the United States and that
adopted by the House of Representatives. 63 Although Congress did
not define the term "predecessor in interest," its inclusion of the term
suggests that it intended that a sufficiently close relationship exist
between the parties before a court may admit former testimony.
Moreover, this relationship should satisfy the fairness concerns underlying Rule 804(b)(l).
The "markup sessions" of the House Subcommittee on Criminal
Justice64 reveal that Rule 804(b)(l), which governs the use of former
testimony, should parallel the use of prior action depositions under
Rule 32 of the Federal Rules of Civil Procedure. 65 Representative
William L. Hungate, chairman of the subcommittee, in particular
espoused this view. 66 Because courts often rely on the explanations of
authoritative persons, especially chairpersons, who were closely
involved in developing and drafting legislation, 67 courts have cited
Representative Hungate as an authoritative source regarding the leg62. See supra note 59.
.
63. Federal Rules of Evidence: Hearings on S. Rep. No. 1277 Before the Senate Comm. on
the Judiciary, 93d Cong., 2d Sess. 28 (1974) reprinted in 1974 U.S. CODE CONG. & ADMIN.
NEWS 7051, 7074. The resulting confusion among the courts and commentators illustrates
that there is a substantial difference between the version proposed by the Supreme Court and
that adopted by the House.
64. Rules of Evidence (Supplemental): Hearings Before the Subcomm. on Criminal Justice
of the House Comm. on the Judiciary, 93d Cong., 1st Sess. 388 (1973). During these hearings,
the subcommittee listened to testimony and read into the record letters from individuals and
associations offering recommendations for amending Rule 804(b)(l). Unfortunately, no
written record of these debates exists. Professor Weissenberger, however, obtained tapes of the
markup sessions held by the subcommittee on Rule 804(b)(l) and transcribed the tapes. See
Weissenberger, The Admissibility of Grand Jury Transcripts: Avoiding the Constitutional Issue,
59 TuL. L. REV. 335, 353-65 (1984). The actual markup on legislation performed by a
congressional subcommittee is a primary source of authoritative legislative history. See, e.g.,
United States v. Oates, 560 F.2d 45, 69-80 (2d Cir. 1977) (The court explicitly deferred to the
House Subcommittee on Criminal Justice's views on the intended effect of Rule 803(8)(b) and
(c).); see also G. FOLSOM, LEGISLATIVE HISTORY 27 (1979) (A committee report is a primary
source of authoritative legislative history.).
65. See Weissenberger, supra note 64, at 360-63. In a forthcoming article, Professor
Weissenberger persuasively argues that courts must focus on the subcommittee's version of
Rule 804(b)(l) in order to reconcile seemingly substantial differences between the House and
Senate reports. See Weissenberger, The Former Testimony Hearsay Exception: A Study in
Rulemaking, Judicial Revisionism, and the Separation of Powers, 67 N.C.L. REV._ (1989).
66. See Weissenberger, supra note 64, at 362-63.
67. See, e.g., NLRB v. Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U.S.
58, 66 (1964); Schwegrnann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-95 (1951); see
also Weissenberger, supra note 64, at 348 n.40.

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islative history of the Federal Rules of Evidence. 68
Rule 32(a)(4) permits a party to offer depositions69 in a subsequent action involving the "same parties or their representatives or
successors in interest. " 70 Despite the express language of the Rule,
most courts do not require identical parties; rather, courts often allow
"substantially the same" parties to invoke Rule 32(a)(4). 71 Under
Rule 32(a)(4), courts have construed the substantially-the-same-parties requirement to encompass a plethora of factual situations. A
party may offer a prior action deposition, however, only if there is a
sufficiently close relationship between the party against whom the
deposition is being offered and a party in the prior proceeding in
which the deposition was taken. Examples of a sufficiently close relationship include a parent corporation and its subsidiary, 72 and a private plaintiff and private corporations intricately involved in a
shipping accident. 73
In addition, a sufficiently close relationship may exist between an
68. Oates, 560 F.2d at 69-71.
69. Rule 32 of the Federal Rules of Civil Procedure provides for the use of a deposition in
a subsequent proceeding. Many courts, however, have treated the term "deposition" as
including both deposition testimony and former testimony, including testimony from a prior
proceeding. See, e.g., Arrow-Hart, Inc. v. Philip Carey Co., 552 F.2d 711, 713 (6th Cir. 1977)
(holding that a trial transcript was admissible as a deposition under Rule 32); 5 J. WIGMORE,
EVIDENCE IN TRIALS AT COMMON LAW§ 1401, at 201-02 (J. Chadbourn rev. 1974).
70. Rule 804 and Rule 32(a)(4) provide independent bases for admitting deposition or
former testimony. 4A J. MOORE, MOORE'S FEDERAL PRACTICE§ 32.02(1], at 32-11 (2d ed.
1987). The Supreme Court amended Rule 32(a)(4) in 1980. See FED. R. CIV. P. 32(a)(4)
advisory committee's note, 85 F.R.D. 521, 530. In amending Rule 32(a)(4), the advisory
committee stated that the Federal Rules of Evidence do not limit the admissibility of
depositions under Rule 32(a)(4). See FED. R. CIV. P. 32(a)(4) advisory committee's note, 85
F.R.D. 521, 530. Fonner testimony, including depositions, may be admissible under Rule
804(b)(l) even if the deposition does not satisfy Rule 32(a)(4). Similarly, deposition testimony,
and arguably former testimony, may be admissible under Rule 32(a)(4) even if it does not
satisfy Rule 804(b)(l).
In determining the admissibility of a prior action deposition, it is unclear whether Rule
804(b)(I) or Rule 32(a)(4) controls if one rule is satisfied but the other is not. See, e.g., Hub v.
Sun Valley Co., 682 F.2d 776, 778 (9th Cir. 1982) (declining to decide whether a prior action
deposition is admissible under Rule 32(a)(4) if the similar-interest-and-motive test adopted by
some courts in the Rule 804(b)(l) context is satisfied because any such decision would be
dicta). For an analysis of this issue, see Comment, supra note 7.
71. See, e.g., Rule v. International Ass'n of Bridge, Structural and Ornamental
lronworkers, Local Union No. 396, 568 F.2d 558, 568-69 (8th Cir. 1977); Ikerd v. Lapworth,
435 F.2d 197, 205-06 (7th Cir. 1970); Alamo v. Pueblo Int'!, Inc., 58 F.R.D. 193, 194 (D.P.R.
1972); Fouke Fur Co. v. Bookwalter, 261 F. Supp. 367, 368-70 (E.D. Mo. 1966); Hertz v.
Graham, 23 F.R.D. 17, 19-23 (S.D.N.Y. 1958), aff'd, 292 F.2d 443, 444-47 (2d Cir. 1961).
72. Ornamental Ironworkers, 568 F.2d at 569; Miwon, U.S.A., Inc. v. Crawford, 629 F.
Supp. 153, 154 n.3 (S.D.N.Y. 1985).
73. Tug Raven v. Crown Central Petroleum Corp., 419 F.2d 536, 542-43 (4th Cir. 1969),
cert. denied, 398 U.S. 938 (1970).

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automobile driver and a passenger. In Ikerd v. Lapworth, 14 the
United States Court of Appeals for the Seventh Circuit upheld the
district court's admission of depositions taken before the driver had
filed suit against the defendant because of the sufficiently close relationship between the parties. The court reached this holding despite
the fact that only counsel for the passenger was present at the deposition. 75 The court noted that the driver had agreed to allow the passenger's counsel to "assume almost complete charge of both cases" at
trial. 76 Moreover, the relationship between the driver and his passenger ensured that the passenger's counsel would prepare equally and
make the same tactical decisions for both parties. Because the court
had consolidated discovery in each of the lawsuits, the parties had
almost identical access to information concerning the accident. 77 The
court concluded that the cross-examination during the deposition on
behalf of the driver would not have differed from that conducted on
behalf of the passenger. 78 The fairness concerns underlying Rule
32(a)(4), as well as Rule 804(b)(l), were therefore satisfied.
At common law, former testimony, including depositions, was
admissible if substantially the same parties were involved in both proceedings. 79 Unlike Rule 32(a)(4), 80 however, the substantially-thesame-parties requirement of the former testimony exception was narrowly construed at common law. The common law former testimony
exception encompassed only parties in privity, representatives, and
successors in interest. 81 The substantially-the-same-parties requirement, however, is likely to be both overinclusive and underinclusive
with regard to the fairness concerns underlying Rule 804(b)( 1). The
standard is overinclusive because, as construed under the former testimony exception, the requirement strictly encompasses legal relationships only, which seldom satisfy the fairness concerns of Rule
804(b)(l). The standard is underinclusive, however, because many
relationships that are not substantially the same, such as family
relationships, 82 satisfy the fairness concerns of Rule 804(b)(l). Consequently, the substantially-the-same-parties requirement seldom pro74. 435 F.2d 197 (7th Cir. 1970).
15. Id. at 204.
16. Id. at 206.
11. Id.
78. Id.
19. See supra notes 32-43 and accompanying text.
80. See supra note 71.
81. See supra notes 41-43 and accompanying text.
82. Briggs v. Briggs, 80 Cal. 253, 22 P. 334 (1889) (holding that sons were successors in
interest of their father and were therefore permitted to offer the father's deposition in a
subsequent proceeding).

ADMISSIBILITY OF FORMER TESTIMONY

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vides adequate security against the admission ,of unreliable hearsay.
Whether the parties are substantially the same, therefore, should constitute only one factor in determining whether former testimony is
admissible.
·
IV.

CURRENT INTERPRET ATIO NS OF THE TERM
"PREDECESSOR IN INTEREST"

Courts have produced four different interpretations of the term
"predecessor in interest." First, some courts have construed the term
to mean common law privity. 83 Second, under certain circumstances,
courts have treated the United States government as the predecessor
in interest of an individual bringing a related private action. 84 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. 85 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. 86 Except for the inter83. E.g., In re Screws Antitrust Litig., 526 F. Supp. 13f6, 1318-19 (D. Mass. 1981)
(holding that defendants in a criminal action were not the predecessors in interest of unrelated
defendants in a subsequent antitrust proceeding); ILC Peripherals Leasing Corp. v.
International Business Machines (In re IBM Peripheral EDP Devices Antitrust Litig.), 444 F.
Supp. 110, 111-13 (N.D. Cal. 1978) (holding that corporations from a prior antitrust
proceeding were not the predecessors in interest of an unrelated corporation in a subsequent
proceeding); Lloyd v. American Export Lines, 580 F.2d 1179, 1190-91 (3d Cir.) (Stem, J.,
concurring) (arguing that the Coast Guard was not the predecessor in interest of a private
plaintiff), cert. denied, 439 U.S. 969 (1978); Maxwell v. City of Springfield, 705 S.W.2d 90, 9798 (Mo. Ct. App. 1986) (Maus, J., dissenting) (arguing that a master was not the predecessor
in interest of his nonparty servant).
84. In re Master Key Litig., 72 F.R.D. 108, (D. Conn. 1976) (holding that the United
States was the predecessor in interest of the private plaintiffs in a subsequent antitrust action),
ajf'd, 551 F.2d 300 (2d Cir. 1976).
85. E.g., Lloyd, 580 F.2d at 1185-87 (The Coast Guard was the predecessor in interest of a
private plaintiff.); Pacelli v. Nassau County Police Dep't, 639 F. Supp. 1382, 1385-86
(E.D.N.Y. 1986) (The United States, as a party in a criminal action, was the predecessor in
interest of a municipality and its police officers in a subsequent civil rights action.); Carpenter
v. Dizio, 506 F. Supp. 1117, 1124 (E.D. Pa.) (The state, as a party in a criminal action, was the
predecessor in interest of a municipality and its police officers in a subsequent civil rights
action.), ajf'd, 673 F.2d 1298 (3d Cir. 1981). But see Zenith Radio Corp. v. Matsushita Elec.
Indus. Co., 505 F. Supp. 1190, 1252-55 (E.D. Pa. 1980) (Codefendants in a prior antitrust
proceeding were not predecessors in interest of codefendants in a subsequent antitrust
proceeding.).
86. E.g., Dykes v. Raymark Indus., 801 F.2d 810, 815-16 (6th Cir. 1986) (A corporation
was the predecessor in interest of an unrelated corporation.), cert. denied, 107 S. Ct. 1975
(1987); In re Paducah Towing, 692 F.2d 412, 418 (6th Cir. 1982) (The United States Coast
Guard, which originally held a license revocation hearing for a ship captain involved in an
accident, was the predecessor in interest of a third party corporation that owned a ship that
was also involved in the accident.); In re Related Asbestos Cases, 543 F. Supp. 1142, 1147-48
(N.D. Cal. 1982) (A factory worker was the predecessor in interest of a shipyard worker
employed by an unrelated company involved in the subsequent proceeding.); Houten v.

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pretation involving the federal government in related private actions,
all of these interpretations are irreconcilable with Rule 804(b)(l)'s legislative history, which indicates that fairness was of primary
importance.
A.

The Privity Interpretation

Some courts have interpreted the term "predecessor in interest"
to mean a party in privity. 87 Privity is a concurrent or successive relationship to the same property right. 88 At common law, it was sufficient if the parties were privies in law or estate. 89
In the context of former testimony, privity exists between parties
in the following relationships: Grantor and grantee; 90 assignor and
assignee; 91 trustee and beneficiary; 92 administrator or executor and
heirs or estate creditors; 93 lessor and lessee; 94 decedent and wrongful
Robison (In re Van Houten), 56 Bankr. 891, 894-95 (W.D. Mich. 1986) (A creditor was the
predecessor in interest of a debtor's trustee.); Standard Oil Co. v. Montedison, 494 F. Supp.
370, 421 n.462 (0. Del. 1980) (A corporation was the predecessor in interest of two unrelated
corporations.), ajf'd, 664 F.2d 356 (3d Cir. 1981); Hewitt v. Hunter, 432 F. Supp. 795, 799
(W.D. Va. 1977) (A purchaser was not the predecessor in interest of his vendor.), aff'd, 574
F.2d 182 (4th Cir. 1982); Maxwell v. City of Springfield, 705 S.W.2d 90, 92-94 (Mo. Ct. App.
1986) (A master was the predecessor in interest of his nonparty servant.).
87. See supra note 83. Despite widespread rejection by the courts, most commentators
have argued in favor of the privity interpretation. See M. GRAHAM, HANDBOOK OF FEDERAL
EVIDENCE § 804.1, at 948-49 (1986); 4 J. WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE
§ 804(b)(l)[04), at 804-67 (1976); see also Weissenberger, supra note 65 (Although it is not
clear that Congress intended a privity interpretation, a "formal succession of interests" was
contemplated.). But see E. CLEARY, McCORMICK ON EVIDENCE § 257, at 766-67 (3d ed.
1984).
88. See BLACK'S LAW DICTIONARY 1079 (5th ed. 1979) (defining privity as "[a] mutual or
successive relationship").
89. Jones, supra note 32, at 594. Most common law commentators argued that former
testimony should be admitted if the parties were privies by blood. See, e.g., B. ELLIOTT, supra
note 31, § 508, at 594. Privity by blood is defined as that which "existed between an heir and
his ancestor ... and between coparceners." BLACK'S LAW DICTIONARY 1079 (5th ed. 1979).
These commentators, however, never cited case law, apparently because courts refused to
admit former testimony solely on the basis of privity by blood. For a discussion of the
problems involved in admitting former testimony on the basis of privity by blood, which would
permit testimony to be offered against a coparcener, see Turner, Federal Rule of Evidence 804:
Will the Real Predecessor-in-Interest Please Stand Up, 19 AKRON L. REV. 251, 261 (1985).
90. E.g., Yale v. Comstock, 112 Mass. 267, 268 (1873). For an analysis of the problems
involved in admitting former testimony in the grantor-grantee context, see infra notes 101-03
and accompanying text.
91. E.g., Atkins v. Anderson, 63 Iowa 739, 743, 19 N.W. 323, 324-25 (1884).
92. See Kerrison v. Stewart, 93 U.S. 155, 162 (1876) (holding that beneficiaries were
bound by a judgment entered in a prior proceeding to which their trustee was a party because
the trustee was privy to their interests and adequately represented their interests).
93. E.g., Strickland v. Hudson, 55 Miss. 235, 239-41 (1877) (Testimony of deceased in
prior proceeding was offered against the administrator of deceased's estate in a subsequent
proceeding.).
94. E.g., Shaw v. New York Elevated R.R., 187 N.Y. 186, 193, 79 N.E. 984, 987 (1907).

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death plaintiff; 95 and parent corporation and subsidiary. 96
Traditionally, few safeguards have surrounded the privity relationship.97 The privy in the subsequent proceeding "stands in the
shoes" of his predecessor apparently because he can receive no more
than his predecessor possessed. 98 A privy usually cannot relitigate
rights that his predecessor had settled in a prior proceeding when he
possessed those rights. 99 Efficiency, absent any other considerations,
therefore dictates that a privy be bound with his predecessor's crossexamination.
At common law, the proffered former testimony usually concerned the property forming the privity relationship. 100 A grantee, for
example, would often offer former testimony concerning the property
conveyed to him by his grantor. 101 But simply because a party succeeds to a property right does not mean that a sufficiently close relationship exists between that person and the predecessor in interest. A
predecessor, for example, may have placed a lower value on the property than w~uld his successor. 102 If so, the predecessor's degree of
For an analysis of the problems involved in admitting former testimony in the lessor-lessee
context, see infra notes 112-13 and accompanying text.
95. E.g., Atlanta & West Point R.R. v. Venable, 67 Ga. 697, 699-700 (1881). But see
Arsnow v. Red Top Cab Co., 159 Wash. 137, 144-45, 292 P. 436, 438 (1930) (In a subsequent
proceeding, an administratrix was not permitted to offer the former testimony of her deceased
husband as to the issue of his sanity because the issue of his sanity was not a continuation of
her husband's original suit, and therefore the same parties were not involved.).
96. In In re IBM Peripheral EDP Devices Antitrust Litigation, IBM sought to use trial
transcripts from prior proceedings to which it had been a party. 444 F. Supp. 110, 111-12
(N.D. Cal. 1978). Memorex, the defendant, objected to IBM's use of the former testimony
because Memorex had not been a party to any of the prior proceedings arid because none of the
parties to the prior proceedings was a predecessor in interest of Memorex. Id. The district
court refused to admit the former testimony because the parties in the prior proceedings and
Memorex were not corporate privies. Id. at 113.
Rule 804(b)(l)'s fairness concerns are usually satisfied if a parent corporation and its
subsidiary are involved. Both a parent corporation and its subsidiary would probably actively
prepare for a lawsuit. Because discovery would be consolidated, both parties would enjoy
similar access to information. Further, there may be an overlap of attorneys employed during
various stages of the litigation. If so, different tactical decisions would be less likely than if
there were different attorneys at each stage of the litigation.
.
97. See Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111, 126-29
(1912). A judgment entered in a prior proceeding binds a party in privity with a party to the
prior proceeding because their relationship ensures identical interests.
98. See, e.g.. Guy v. Hall, 7 N.C. (3 Mur.) 118, 119 (1819).
99. Id.
100. See E. CLEARY, supra note 87, § 268, at 795-96. See generally S. GREENLEAF, supra
note 32, at 278-79 (Former testimony is admissible "where the parties, though not the same,
are so privy in interest-as where one was an executor or perhaps a grantor-that the same
motive and need for cross-examination existed.").
101. See supra note 90.
102. Collateral estoppel or "issue preclusion" occurs "where a question of fact essential to
the judgment is actually litigated and determined by a valid and final [prior] judgment,

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preparation for the prior proceeding and his tactical decisions during
that proceeding could differ substantially from his successor. Furthermore, a successor may gain better information concerning the
property's disposition if he placed a higher value on it than his predecessor had. The successor has the benefit of hindsight and may
examine the previous litigation to refute or impeach the predecessor's
testimony. 103 On the other hand, much time may have passed since
the original litigation and the successor's access to information may
be impaired by the unavailability of witnesses or by their fading recollection of past events.
Nothing in the 'legislative history of Rule 804(b)(l) indicates,
however, that Congress intended to limit the term "predecessor in
interest" to parties in prior proceedings or their privies. If Congress
had intended to reinstate the outmoded concept of privity employed
in the law of property, it could have done so easily. 104 Moreover,
privity is narrower than the common law's restrictive substantiallythe-same requireme~t, which also encompasses representatives and
[because] the determination [is then] conclusive between the parties in a subsequent action on a
different cause of action." RESTATEMENT OF JUDGMENTS § 68 (1942). In the offensive
collateral estoppel context, a plaintiff seeks to preclude a defendant from relitigating issues that
that defendant previously and unsuccessfully litigated against another plaintiff. Whether the
defendant is estopped is left to the court's discretion. Parklane Hosiery Co. v. Shore, 439 U.S.
322, 331 (1979). Parklane specifically states, however, that offensive collateral estoppel is not
permitted if the defendant had little economic incentive to litigate the prior action vigorously.
Id. at 330. The markup sessions on Rule 804(b)(l) reveal that key subcommittee members
believed it was unfair to bind a party if his predecessor in interest had had an insufficient
economic incentive to cross-examine in the prior proceeding. See Weissenberger, supra note
64, at 354-55 (statements of Rep. William L. Hungate and Rep. Wiley Mayne). Admittedly,
courts would find it difficult to gauge how much a predecessor in interest valued the property.
Such difficulty would result in the court expending more time to determine whether the former
testimony should be admitted. Turner, supra note 89, at 263. Fairness concerns, however,
compel a closer examination of a predecessor in interest's motivation to protect his interests in
the 804(b)(1) context than a litigant's motivation to protect his interests in the collateral
estoppel context because the former testimony is being offered against a person who was not a
party to the prior proceeding. Therefore, unlike offensive collateral estoppel, the opponent of
the hearsay, even if a privy of a party to the prior proceeding, never has his day in court.
103. See FED. R. Evm. 804(b)(l). Refuting or impeaching the grantor's testimony,
however, is not an effective trial technique, even if the property he conveyed is unrelated to the
present litigation. See Turner, supra note 89, at 263 n.63. Refuting or impeaching a
predecessor in interest's testimony is likely to be ineffective because the jury will believe that
the party in the subsequent proceeding is trying to "sandbag" them by discrediting a person
who gratuitously transferred property to him. Consequently, the party in a subsequent
proceeding will often forego refuting or impeaching the predecessor in interest's testimony. If
so, untrustworthy evidence would once again be admitted. This is an undesirable result of the
privity interpretation of the "predecessor in interest" language-an interpretation that ignores
the cross-examination conducted in the prior proceeding and the cross-examination to be
conducted in the subsequent proceeding.
104. See E. CLEARY, supra note 87, at 766.

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successors in interest. 105 Although these concepts often overlap, in
the context of former testimony, the privity concept does not include
a successor in interest, such as a close family member. 106 The available information indicates that Congress must have intended an interpretation that is less restrictive than privity. 107 A less restrictive
interpretation of the term "predecessor in interest" is consistent with
the steady broadening of the common law parties requirement of the
exception for former testimony. 108
Congress clearly intended to adopt a rule that would be fair. to
any party who did not have an opportunity to examine a witness in a
prior proceeding. 109 The privity interpretation does not always promote this policy objective because it assumes that it is fair to bind a
party solely because the party and the predecessor have a common
interest in the disputed property. 11° Consequently, a privity relationship seldom provides adequate security against the admission of unreliable hearsay. 111 In contrast, many relationships involving nonprivy
parties may satisfy the fairness concerns underlying Rule 804(b)(l).
A privity interpretation, therefore, would unnecessarily restrict the
admission of former testimony in some cases in which it would be fair
to admit that. testimony.
Furthermore, neither Rule 804(b)(l) nor its legislative history
require that the proffered former testimony involve the property previously owned by the predecessor and now owned by his privy. 112 In
such situations, it is not likely that a concurrent or successive relationship to the same property right will ensure that Rule 804(b)(l)'s
fairness concerns are satisfied. In a concurrent relationship context,
for example, suppose a lessor and a lessee each bring a claim for personal injuries resulting from an automobile accident. 113 If testimony
105. See supra notes 41-43 and accompanying text.
106. See supra note 43 and accompanying text.
107. See supra notes 59-62 and accompanying text.
108. See supra notes 12-43 and accompanying text.
109. See supra notes 59-62 and accompanying text.
110. See, e.g., Mid-City Bank & Trust Co. v. Reading Co., 3 F.R.D. 320, 322 (D.N.J. 1944).
111. Professor Graham has stated: "At common law, statements by a person in privity
with a party are receivable in evidence as an admission of the party." M. GRAHAM, supra note
61, at 148. The Federal Rules of Evidence dispensed with privity-based admissions and
adopted Professor Morgan's position that "considerations of privity [do not] furnish criteria of
trustworthiness nor aid in the evaluation of testimony." Id. at 149 (citing Morgan. Admissions,
12 WASH. L. REV. 181 (1937)). For a further discussion of the trustworthiness problems
involved in admitting former testimony solely on the basis of privity, see Turner, supra note 89,
at 261-62.
112. See Turner, supra note 89, at 261.
113. Joint tenants are another example of how concurrent privity relationships do not
satisfy fairness concerns of Rule 804(b)(l). Id.

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is introduced in the lessee's case, this testimony is subsequently
admissible against the lessor solely because the lessor and lessee are
privies. The parties' common interest, however, does not arise from
their respective property rights. Rather, the parties' common interest
arises, if at all, by virtue of their relationship. In any event, the lessorlessee relationship is usually not sufficiently close. Assuming the lessor possesses superior resources, his tactical decisions, state of preparation, and access to information will more likely be superior to the
lessee's. It would usually be unfair, therefore, to bind a lessor with his
lessee's cross-examination.
If the Rule were interpreted so that privity constituted only one
factor in determining whether former testimony should be admitted,
the interpretation would be consistent with the fairness concerns
described in the legislative history of Rule 804(b)(1). 114 Such an interpretation would satisfy the intent of the House Subcommittee on
Criminal Justice that Rule 804(b)(l) parallel the use of prior action
depositions under Rule 32(a)(4) of the Federal Rules of Civil Procedure. rn Rule 32(a)(4) has a substantially-the-same-parties requirement, rather than a privity requirement. 116 This approach is also
consistent with the common law's substantially-the-same-parties
requirement of the former testimony exception, which encompasses
privity. 117
Rule 804(b)(l)'s legislative history indicates that Congress was
not concerned with the possibility that a party could receive more
than his predecessor in a subsequent proceeding. 118 At the expense of
relitigating rights, Congress wanted to bind the party in the subsequent proceeding only if it was fair to do so. 119 A party in privity,
therefore, should stand in his predecessor's shoes only if the parties
have overlapping interests.

B.

The Government AgencY-Private Plaintiff Interpretation

Courts have interpreted the term "predecessor in interest" to
include the United States Government as the predecessor in interest
of individuals bringing related private actions. In In re Master Key
114. See supra notes 59-62 and accompanying text. In amending Rule 804(b)(I), the
advisory committee stated that privity is merely "further assurance" that it is fair to bind a
party with his predecessor's cross-examination of the witness who had proffered the testimony.
See FED. R. Evm. 804(b)(I) advisory committee's note, 56 F.R.D. 183, 324.
115. See supra notes 65-66 and accompanying text.
116. See supra note 71 and accompanying text.
117. s. GREENLEAF, supra note 32, at 278-79.
118. See supra notes 59-62 and accompanying text.
119. Id.

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Litigation, 120 for example, Eaton, a defendant corporation, sought to
offer trial testimony from an earlier federal antitrust action. 121 The
federal antitrust action had spawned numerous private class actions,
one of which was the subject of the Master Key dispute. 122 The private plaintiffs objected to Eaton's use of the fo1JI1er testimony because
none of the plaintiffs had been a party to the prior proceeding between
the United States Government and Eaton. 123 The court admitted the
former testimony, however, finding that there were special considerations that supported a finding that the United States Government was
the predecessor in interest of these private individuals bringing a
related private action. 124
In Master Key, the court examined the "unique relationship"
between the government antitrust enforcement agency and injured
competitors. 125 The court, however, did not analyze how this unique
relationship made it fair to bind the private plaintiffs with the crossexamination conducted by the government. 126 Nonetheless, this
approach is apparently based on the premise that when the government brings suit, it sues on behalf of itself and the public interest.
Cross-examination by a particular governmental unit, therefore, binds
that unit and all citizens protected by the statute.
The approach of binding private plaintiffs with the government's
cross-examination has not gained wide acceptance. 127 Professor Martin has argued that in the antitrust context, this practice "appear[s] to
be inconsistent with relatively specific statutory language" delineating
the relationship between the government and private plaintiffs. 128 To
achieve the purpose of the antitrust legislation, however, it must be
implemented beyond its text. 129 Congress intended "to minimize the
burdens of litigation for injured private suitors by making available to
120. 72 F.R.D. 108 (D. Conn. 1976).
121. Id. at 109; see also State v. New Orleans Waterworks, 107 La. 1, 39, 31 So. 395, 411
(allowing the state to offer testimony from a prior proceeding involving private individuals
suing the same defendant), denying application/or reh'g, 107 La. l, 45, 31 So. 395, 414 (1901).
122. Master Key, 72 F.R.D. at 109.
123. Id.
124. Id. at 110. Because Rule 804(b)(l) requires that the witness be unavailable, only the
testimony of a witness who had died since the prior proceeding was admitted. Id.
125. Id. at 109.
126. The court explained that the government's antitrust suit provided special benefits to
the private plaintiffs bringing the subsequent civil suit. One benefit was that the government's
suit tolled the statute of limitations, thereby extending the period of recovery for the private
plaintiffs. Id.
127. Martin, Inherent Judicial Power: Flexibility Congress Did Not Write into the Federal
Rules of Evidence, 51 TEX. L. REV. 167, 201 n.198 (1979).
128. Id.
129. See generally K. Llewellyn, THE COMMON LAW TRADITION 522 app. c. (1960)
(discussing the general canons of construction for statutes).

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them all matters previously established by the [g]overnment in antitrust actions." 130 To promote parallel government and private action,
therefore, the government should be treated as the predecessor in
interest of private plaintiffs bringing subsequent antitrust actions.
The fairness concern embodied in Rule 804(b)(l), which is a primary factor in interpreting the term "predecessor in interest," is usually satisfied in the antitrust enforcement context because · a
sufficiently close relationship is generally involved between a government agency actively carrying out its statutory duty, and sophisticated corporations that the legislation was designed to benefit. Both
the government and the corporations actively prepare for litigation
and enjoy similar access to information. Furthermore, corporations
derive many benefits from the government's antitrust enforcement. If
Rule 804(b)(l)'s fairness concern is met, a corporation should "take
the bitter with the sweet;" 131 i.e., courts should permit parties to offer
former testimony from a government suit against a corporation in a
subsequent private antitrust action because the corporation can often
offer former testimony from government suits under Rule 32(a)(4) of
the Federal Rules of Civil Procedure, or ~nder Rule 804(b)(l). 132
C.

The "Community of Interest" Interpretation

Some courts have applied the community-of-interest test in interpreting the term "predecessor in interest" 133 if a governmental unit
has cross-examined a witness and the testimony is subsequently
offered against a private plaintiff, 134 or against police officers in a civil
130. Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568 (1951) (construing
Clayton Act, ch. 323, § 5, 38 Stat. 730, 731 (1914) (current version at 15 U.S.C. § 16(a)
(1982)). Emich involved the effect a judgment in an action brought by the government has on
a subsequent private antitrust action. Id. Since 1980, private plaintiffs have been able to use
judgments against nonparties to the government's enforcement action. See Motomura. Using
Judgments as Evidence, 70 MINN. L. REV. 979, 994 (1986) (construing 15 U.S.C. § 16(a)
(1982)). For an analysis of why the nature and limits of a judgment are similar to that of
former testimony, see infra notes 193-202 and accompanying text.
131. Cf Arnett v. Kennedy, 416 U.S. 134, 153-54 (1973) (The state can give a substantive
right and at the same time limit that right procedurally; therefore, a litigant must "take the
bitter [procedure limiting the right] with the sweet [the right itself]."). This trend is also
evidenced by the fact that parties to the government's enforcement action may now assert
judgments from the enforcement action as res judicata in later private antitrust litigation and
nonparties to the enforcement action may assert judgments against parties to the government's
enforcement action. See Motomura, supra note 130, at 992-94.
132. See supra notes 64-65 and accompanying text.
133. See supra note 85 and accompanying text. At common law, a mere "community of
interest" between the parties did not warrant admitting the former testimony. See C.
CHAMBERLAYNE, supra note 32, § 1672, at 2146.
134. See Lloyd v. American Export Lines, 580 F.2d 1179, 1181 (3d Cir.), cert. denied, 439
U.S. 969 (1978).

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rights action. 135 Although this approach is apparently based on a radically expanded version of the governmental-unit/protected-privateplaintiff approach, 136 it is not based upon any statutorily defined
relationship.
The most widely cited case utilizing the community-of-interest
approach is Lloyd v. American Export Lines, /nc. 137 Lloyd, an
injured crewman, filed a negligence action and unseaworthiness claim
against his employer, a shipowner, for injuries he suffered in an altercation with Alvarez, a fellow crewman. 138 Lloyd joined Alvarez as a
third-party defendant, and Alvarez cross-claimed against the shipowner. 139 The shipowner sought to use testimony from a prior Coast
Guard proceeding that had investigated the incident. 140 Alvarez
objected to the admission of that testimony, arguing that the Coast
Guard was not his predecessor in interest. 141 The district court
agreed with Alvarez and excluded the evidence. 142
The United States Court of Appeals for the Third Circuit
reversed, holding that a community of interest existed between the
Coast Guard and the crewman, and that the former testimony was
therefore admissible. 143 The court reasoned that Alvarez sought to
vindicate his individual interests by recovering for his injuries. 144
Alternatively, the Coast Guard was acting to protect its interest and
that of the public by ensuring a safe merchant marine service. 145 Nevertheless, both the Coast Guard and Alvarez were interested in determining Lloyd's culpability. 146
135. See Pacelli v. Nassau County Police Dep't, 639 F. Supp. 1382, 1383 (E.D.N.Y. 1986);
Carpenter v. Dizio, 506 F. Supp. 1117, 1120 (E.D. Pa.), ajf'd, 673 F.2d 1298 (3d Cir. 1981).
136. See supra notes 125-26 and accompanying text.
137. Id.
138. Id. at 1181. Lloyd's complaint was dismissed by the district court because he failed to
appear for a pretrial deposition or the trial. Trial was had, however, on the officer's suit
against the shipowner. Id.
139. Id.
140. Id. at 1182-83.
141. Id. at 1184.
142. Id. at 1181.
>
143. Id. at 1185-87. But see Federal Deposit Ins. Corp. v. Glickman, 450 F.2d 416, 418
(9th Cir. 1971). The United States Government and the FDIC are not the "same party" for
purposes of former testimony exception. In the subsequent proceeding, the FDIC "stood in
the shoes" of the insolvent bank involved in the subsequent proceeding, not the United States
Government who originally brought a criminal action against the president and an alleged
agent of the bank. Id.
144. Lloyd, 580 F.2d at 1186.
145. Id.
146. Id. The Lloyd court reasoned that there was such a. "great need for the excluded
testimony that a new trial was essential." Id. at 1182. A "great need" for testimony, however,
is not relevant in a sufficiently-close-relationship analysis. Rule 804(b)(l) requires an
unavailable declarant. Any party who wants to admit former testimony obviously has a "great

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The community-of-interest test employed in Lloyd, in effect,
ignores Rule 804(b)(l)'s predecessor-in-interest requirement. After
finding that the parties enjoyed a community-of-interest, the Lloyd
court implied that any party having a like motive would be sufficient. 147 The court thus relied solely on the similar-interest-andmotive requirement, even though Congress had specifically rejected
such a broad approach. 148 The Lloyd court failed to address how the
parties' relationship fostered a community of interest that satisfied
Rule 804(b)(l)'s predecessor-in-interest requirement. 149 This resulted
in a decision that largely ignored Congress' desire to protect parties
not represented in the prior proceeding.
The United States District Court for the Eastern District of New
York recently utilized the community-of-interest test in Pacelli v. Nassau County Police Department. 150 Pacelli, a murder convict, brought a
civil rights action against a municipal police department and three of
its detectives. 151 Pacelli alleged that the detectives had fabricated evidence to corroborate the confession of Pacelli's alleged accomplice
that he and Pacelli murdered the deceased. 152 To prove this allegation, Pacelli sought to use his accomplice's testimony from an unrelated criminal narcotics prosecution concerning the location of the
murder weapon, which was a knife. 153 In that proceeding, the accomplice had testified that they threw the knife away in Nassau County.
That testimony contradicted his earlier confession in which he stated
that they threw the knife away in Westchester County. 154 Pacelli
alleged that his accomplice's testimony at the narcotics prosecution
was truthful, which cast doubts upon the signed confession and indineed" for it, or they would not attempt to admit the testimony of a witness whose
unavailability will prevent the jury from gauging his demeanor. See generally Morgan.
Hearsay Dangers and the Application of the Hearsay Concept, 62 HARV. L. REV. 177, 179
(1948) (arguing that a witness' presence provides an opportunity for the trier of fact to observe
the witness' demeanor and judge the witness' veracity).
147. Id. at 1187; see Turner, supra note 89, at 255; Note, supra note 13, at 86.
148. Lloyd, 580 F.2d at 1187.
149. Some have argued that Lloyd is irreconcilable with Rule 804(b)(l)'s "predecessor in
interest" language because the Coast Guard-crewman relationship existed before the
occurrence of the events giving rise to the original litigation. See Turner, supra note 89, at 264.
There is no support for this approach, however, in Rule 804(b)(l)'s legislative history. In any
event, the point is not when the parties' relationship arose, but whether their relationship
satisfies the fairness concerns of Rule 804(b)(l). Nevertheless, when the relationship arose
may be a factor in determining whether the concerns are satisfied.
150. 639 F. Supp. 1382 (E.D.N.Y. 1986).
151. Id. at 1383.
152. Id. at 1384-85.
153. Id.
154. Id. at 1384.

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cated the existence of a conspiracy to violate Pacelli's civil rights. 155
The district court refused to admit the testimony because the federal prosecutor in the prior criminal proceeding did not have a similar
interest and motive to develop the accomplice's testimony. 156 The
court stated that the federal prosecutor had no reason on redirect
examination to inquire into the truth of the accomplice's statement
concerning the location of the murder weapon. 157 The prosecution
did not have any reason to conduct this inquiry because the statement
did not comprise an element of the prosecution's case. 158
Before the Pacelli court reached the issue of whether the prosecutor possessed a similar motive to develop the testimony in the prior
proceeding, it first had to dispose of Rule 804(b)(l)'s predecessor-ininterest requirement. It did so by adopting the community-of-interest
test established in Lloyd v. American Export Lines, Inc. 159 Pacelli
therefore stands for the proposition that a community of interest
exists between the federal government and a municipality and its
police officers. 160 Similar to Lloyd, the Pacelli decision failed to discuss how the community-of-interest approach fosters Rule 804(b)(l)'s
fairness concern. A close reading of Pacelli, however, reveals that the
court did not actually use the community-of-interest test to determine
whether the predecessor-in-interest requirement was satisfied.
Rather, the Pacelli court merely cited Lloyd and the community-ofinterest test as precedent and avoided the predecessor-in-interest
155. Id. at 1384-85.
156. Id. at 1386.
157. Id. In the subsequent narcotics prosecution, the accomplice's statement concerning
the location of the murder weapon was relevant only so far as rehabilitating the accomplice's
credibility. Because the defense attorney never challenged the truth of the accomplice's
statement, the prosecutor had no motive to inquire about the location of the murder weapon.
158. Id.
159. Id.
160. See Carpenter v. Dizio, 506 F. Supp. 1117 (E.D. Pa.), ajf'd, 673 F.2d 1298 (3d Cir.
1981 ). In Carpenter, a civil rights action was initiated against the city of Philadelphia and
seven of its police officers. Id. at 1120. Carpenter sought to use an eyewitness' testimony
previously given in a criminal proceeding commenced against Carpenter. Id. In this
proceeding, the defendants objected, claiming that the testimony given in a criminal
proceeding cannot be admitted in a subsequent civil proceeding. Id. at 1190-20. The court
held that a "community of interest" existed between the State of Pennsylvania and the
municipal police officers. Id. at 1124. The court relied on the fact that the eyewitness' account
of the confrontation between Carpenter and the police officers was essential for Carpenter to
establish that he acted in self-defense. Id. This was Carpenter's defense in the criminal
proceeding and in the civil rights action. Id. Therefore, the City Solicitor "would have had
the same motive and addressed the identical issues" in the subsequent civil proceeding. Id.
But see Federal Deposit Ins. Corp. v. Glickman, 450 F.2d 416, 418 (9th Cir. 1971); see also
Bolden v. Carter, 269 Ark. 391, 395-96, 602 S.W.2d 640, 642-43(1980) (holding that the state,
which was a party in a criminal proceeding brought against defendant, was not the predecessor
in interest of a police officer who sued for injuries resulting from the defendant's criminal act).

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requirement. 161 The court held that the testimony was inadmissible
solely because the federal prosecutor in the prior criminal proceeding
did not have a similar interest and motive to develop the testimony. 162
D.

The "Similar Interest and Motive" Interpretation

The similar-motive-and-interest test interpretation allows admission of testimony from a prior proceeding if any party with a similar
interest and motive cross-examined the now unavailable declarant. 163
Similar to the community-of-interest test, this approach promotes the
preservation of all trustworthy evidence. Unfortunately, courts
employing either approach impose an unrelated person's tactical decisions, access to information, and state of preparation upon a subsequent party merely because both parties shared an interest in
establishing the same facts.
A widely cited case utilizing the similar-interest-and-motive
approach is United States v. Paducah Towing Co. 164 In Paducah, the
United States government sued the owner of a ship, Paducah, for injuries to a dam resulting from an accident involving Paducah's ship. 165
Paducah sought to introduce testimony from a Coast Guard proceeding that investigated whether the license of the captain of Paducah's
ship should be revoked. 166 The third party defendant, Exxon, from
which Paducah sought indemnification and whose ship was involved
in the mishap, claimed that the district court improperly admitted
hearsay testimony because the Coast Guard was not its predecessor in
interest. 167 The United States Court of Appeals for the Sixth Circuit
reversed, excluding the former testimony on grounds that the Coast
Guard was not Exxon's predecessor in interest and that Exxon did
not have an opportunity to develop the witness' testimony in the prior
proceeding. 168
Exxon did not have an opportunity to develop the witness' testimony principally because the nonlawyer warrant officer who had represented the Coast Guard had inadequately developed the testimony
of one of its own witnesses, a ship's captain who was an eyewitness to
the accident. 169 After this witness' expert opinion was elicited on
161.
162.
163.
164.
165.
166.
167.
168.
169.

Pacelli, 639 F. Supp. at 1386.
Id.
See supra notes 56-57 and accompanying text.
692 F.2d 412 (6th Cir. 1982).
Id. at 417.
Id.
Id. at 418.
Id. at 419.
Id.

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cross-examination by the attorney representing the captain of Paducah's ship, the Coast Guard's counsel did not challenge the witness'
qualifications as an expert on redirect. 110 As a result, it was unclear
whether the ship's captain was testifying from his personal knowledge
or in the .capacity of an expert. 171 The jury, therefore, never knew
whether the witness believed that the captain of the ship owned by
Paducah acted reasonably or whether his expert opinion supported
this conclusion.
In a similar case, Maxwell v. City of Springfield, 172 an injured
driver, Maxwell, sued the city for injuries she suffered in a collision
with a bus owned by the city. 173 Maxwell subsequently took the deposition of an eyewitness to the accident. 174 She thereafter joined the
bus driver as a party and sought to use the eyewitness' deposition
against the bus driver. The trial court refused to admit the testimony
and limited the use of the deposition to the city because the bus driver
had not been a party to the lawsuit when Maxwell took the
deposition. 175
The Missouri Court of Appeals reversed and held that the deposition was admissible against the bus driver because the city had the
same interest and motive as the bus driver to develop the eyewitness'
testimony. 176 Like its bus driver, the city needed to establish whether
Maxwell or the bus driver had violated the traffic signal. 177 The Missouri Court of Appeals stated that "[t]here [was] no reason to believe
that cross-examination and impeachment would have been more
searching and thorough on behalf of the [bus driver] than it was on
behalf of the [city]." 178 The Maxwell decision thus dispensed with the
parties' requirement by limiting its inquiry to whether the master had
a similar motive and interest to develop the testimony in the earlier
proceeding. 179
170. Id.
171. Id.
172. 705 s.W.2d 90 (Mo. Ct. App. 1986).
173. Id. at 91.
174. Id. at 92.
175. Id.
176. Id. at 93 (citing 5 W1GMORE, supra note 69, § 1388, at 111).
177. Maxwell, 705 S.W.2d at 94.
· 178. Id. The city admitted the bus driver's agency. Id. at 92.
179. Missouri has not adopted a state version of Rule 804(b)(l). Moreover, Rule 57.07(a)
of the Missouri Rules of Civil Procedure, which governs the use of depositions in a later stage
of the same or subsequent proceeding, is simply a procedural rule. Id. Consequently, Maxwell
rests heavily on the common law interpretation of the parties' requirement of the former
testimony exception. The court relied primarily upon Bartlett v. Kansas City Pub. Serv. Co.,
349 Mo. 13, 160 S.W.2d 740 (1942). For a discussion of Bartlett, see infra notes 207-18 and
accompanying text.

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The United States Bankruptcy Court for the Western District of
Michigan recently adopted similar-interest-and-motive approach in In
re Van Houten, 180 in which a debtor's trustee sought to use a deposition taken of the debtor to establish the debtor's interest in real property .181 In a previous proceeding, a creditor had sought to establish
that the debtor had concealed assets of his estate, including his aunt's
home. 182 The debtor's trustee objected, claiming that the testimony
was hearsay because the creditor was not the predecessor in interest of
the debtor's trustee. 183 Following the United States Court of Appeals
for the Sixth Circuit, 184 the court stated that the creditor "like the
trustee, needed to establish the debtor's ownership of [the] home in
order to prevail." 185 The court therefore held that the creditor was
the predecessor in interest of the debtor's trustee because both had a
similar interest and motive in establishing the same facts. 186
V.

THI;, "SUFFICIENTLY CLOSE RELATIONSHIP" ANALYSIS

The doctrine of res judicata is analogous to the former testimony
exception and is helpful in determining the exception's parameters.
Under the doctrine of res judicata, or "claim preclusion," 187 a final
judgment on the merits binds the parties and those in privity with
them. 188 The term "parties" in the res judicata context, however, has
been extended beyond the parties of record, to include those who have
a "sufficiently close relationship" with the parties of record to be
bound by the judgment. 189 Examples of a sufficiently close relation180. 56 Bankr. 891 (W.D. Mich. 1986).
181. Id. at 894.
182. Id.
183. Id.
184. Id. The court primarily relied upon Clay v. Johns-Manville, 722 F.2d 1289 (6th Cir.),
cert. denied, 467 U.S. 1253 (1984).
185. In re Van Houten, 56 Bankr. at 895.
186. Id. at 893-95; see also Council Commerce Corp. v. Sterling Navigation Co. (In re
Sterling Navigation Co.) 444 F. Supp. 1043, 1046 (S.D.N.Y. 1977) (declining to decide
whether an unofficial creditors' committee was the predecessor in interest of a corporation's
trustee); Southern White-Lead Co. v. Haas, 73 Iowa 399, 408 (1887) (holding that the
deposition of a partner taken in a prior action agairst him and another partner was not
admissible against their partnership and creditors in a subsequent proceeding because none of
the parties in the subsequent proceeding were in privity with either partner in the prior action).
187. For purposes of this Comment, res judicata, or "claim preclusion," does not
encompass collateral estoppel. Collateral estoppel, or "issue preclusion," occurs if "a question
of fact essential to the judgment is actually litigated and determined by a valid and final [prior]
judgment, [because] the determination [is then] conclusive between the parties in a subsequent
action on a different cause of action .... " RESTATEMENT OF JUDGMENTS§ 68 (1942).
188. See Motomura. supra note 130, at 1026 (citing Blonder-Tongue Laboratories v.
University of Ill. Found., 402 U.S. 313, 320 (1971)).
189. See Comment. Nonparties and Preclusion by Judgment: The Privity Rule
Reconsidered, 56 CAL. L. REV. 1098, 1101 (1968); Note, Developments in the Law: Res

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ship include that between a state government agency and a federal
government agency, 190 that between a television station and the corporation and the shareholders that own the station, 191 and that
between spouses. 192
Adopting the sufficiently-close-relationship approach in the former testimony context is advantageous for two reasons. First, the
nature and limits of the res judicata doctrine are similar to those of
the former testimony exception. 193 The impact of res judicata, which
may bind a party who has not actually appeared in court, is substantial, both upon the parties so bound and in terms of the fairness of the
administration of justice. Consequently, courts closely scrutinize the
relationship between the party who participated in the prior proceeding and the party who did not appear, but who may be bound by the
judgment. 194 Former testimony, in contrast, does not bind a party
that was not represented in the prior proceeding; rather, former testimony may be admitted into evidence against such a party. Moreover,
the party adverse to the former testimony may offer rebuttal evidence
in the subsequent proceeding. 195 Nonetheless, the now unavailable
declarant's testimony usually has a substantial impact on the subsequent proceeding because the former testimony is often the only
means of contradicting testimony by a witness in the subsequent proceeding. 196 In addition, former testimony often concerns the central
issue in the subsequent proceeding, making it extremely probative
Judicata, 65 HARV. L. REV. 818, 855 (1952); Comment. The Expanding Scope of the Res
Judicata Bar, 54 TEX. L. REV. 527, 530 (1976).
190. See United States v. ITI Rayonier, Inc., 627 F.2d 996, 1003 (9th Cir. 1980) (holding
that the Environmental Protection Agency was bound by a judgment entered in a prior
proceeding in which a state agency enforced same permit).
191. See Green v. American Broadcasting Co., 572 F.2d 628, 631 (8th Cir. 1978). But see
Lynch v. Glass, 44 Cal. App. 3d 943, 947-50, 119 Cal. Rptr. 139, 141-43 (1975) (holding that
the plaintiffs were not bound by a judgment entered in a prior proceeding in which the
corporate developer of their properties was a party even though the developer urged plaintiffs
to bring a subsequent proceeding).
192. See Nemeth v. Aluminum Cooking Utensil Co., 146 Cal. App. 2d 405, 407-08, 304
P.2d 129, 129-31 (1956). But see Freeman v. Lester Coggins Trucking Co., 771 F.2d 860, 864
(5th Cir. 1985) (holding that a wife and children were not bound by a judgment entered in a
prior proceeding in which a husband sued for his own injuries, even though the husband
brought the second suit as a wrongful death claimant, because the wife and children did not
succeed to any property interest asserted in the prior proceeding, and the wife and children did
not control the prior proceeding).
193. See Motomura, supra note 130, at 1013.
194. Id. at 1017.
195. FED. R. Evrn. 804(b)(l).
196. E.g., Lloyd v. American Export Lines, 580 F.2d 1179, 1192-93 (3d. Cir.) (Stem. J.,
concurring) (Former testimony was the "sole probative evidence on the point for which it was
offered."), cert. denied, 439 U.S. 969 (1978).

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evidence. 197
It is because of the enormous effect that res judicata and the former testimony exception may have upon subsequent proceedings that
the underlying policies must go beyond mere reliability. 198 Each has a
"parties" requirement that protects the fairness concerns of parties
not represented in the prior proceeding. Courts must therefore
strictly examine the relationship between the party in the prior proceeding and the party whom the judgment will bind, or against whom
the proponent will offer the former testimony. In determining
whether a party has a sufficiently close relationship with the party of
record so that it may be bound by the prior judgment, courts often
inquire whether the parties to the first action had the same or similar
tactical decisions, 199 the same state of preparation, 200 attorneys of
comparable training and experience, 201 or the same access to information202 as those in the subsequent action. These fairness concerns in
the res judicata area often dictate whether a judgment will have a
binding effect. These same concerns should affect whether former testimony is admissible against a party not represented in the prior
proceeding.
Determining whether Rule 804(b)(l)'s predecessor-in-interest
requirement has been satisfied is most easily accomplished if the legal
relationship between the hearsay opponent and the party who previously cross-examined the witness necessarily links the interests of the
parties. Suppose that a husband and wife, for example, are riding in
an automobile that is struck by the defendant. The husband then
brings a claim for his personal injuries that resulted from the accident.
In that proceeding, the husband cross-examines a witness for the
defendant, or at least had the opportunity to cross-examine him. 203
197. E.g., Clay v. Johns-Manville Sales Corp., 722 F.2d 1289, 1294 (6th Cir.) (The
physician's position in the company made his testimony in the prior proceeding "peculiarly
relevant" in the subsequent proceeding.), cert. denied, 467 U.S. 1253 (1984); Carpenter v.
Dizio, 506 F. Supp. 1117, 1124 (E.D. Pa.) (Eyewitness' testimony in the original criminal
proceeding was essential to the self-defense issue in the criminal and subsequent civil
proceedings.), aff'd, 673 F.2d 1298 (3d Cir. 1981).
198. See Motomura, supra note 130, at 1008.
199. In re Air Crash Disaster, 350 F. Supp. 757, 766-67 (S.D. Ohio 1972), rev'd on other
grounds sub nom. Humphreys v. Tann, 487 F.2d 666 (6th Cir. 1973) (Strategy different from
that in previous proceeding would not change the outcome of the subsequent proceeding.).
200. International Tel. & Tel. Corp. v. General Tel. & Tel. Corp., 380 F. Supp. 976, 982-84
(M.D.N.C. 1974); Boyd v. Jamaica Plain Co-Op Bank, 7 Mass. App. Ct. 153, 157-59, 386
N.E.2d 775, 778-79 (1979).
201. Proctor & Gamble Co. v. Byers Transportation Co., 355 F. Supp. 547, 557 (W.D. Mo.
1973) (The fact that the same attorneys represented the carriers in a similar prior suit was a
factor in binding the carrier with the judgment from that suit.).
202. In re Air Crash Disaster, 350 F. Supp. at 766.
203. Rule 804(b)(l) requires that the party against whom the evidence is offered or a

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The witness subsequently becomes unavailable. 204 The wife then sues
the defendant for loss of her husband's services. The following question arises in this situation: Is it fair to admit the unavailable witness'
testimony against the wife in the subsequent proceeding? 205 The fairness concerns of Rule 804(b)(l) would appear to have been satisfied in
this case: The husband and wife probably would have retained the
same attorney, who would have prepared equally diligently and have
made the same tactical decisions for both parties. In addition, discovery would have been consolidated, and both parties would have had
almost identical access to information concerning the accident. Furthermore, in most states today, the husband and wife would be in
privity with each other. 206 This result illustrates that a husband and
wife enjoy a sufficiency close relationship such that it is fair to bind
one with the other's cross-examination.
Courts have permitted a party to offer former testimony against a
party whose spouse cross-examined the witness in a prior proceeding.
In Bartlett v. Kansas City Public Service Commission, 207 for example, a
female passenger was injureq as she descended from a city-owned bus,
allegedly because of the bus' sudden forward movement. 208 Her huspredecessor in interest of that party must have had an opportunity to develop the witness'
testimony by direct, cross, or redirect examination. See FED. R. Evm. 804(b)(l) advisory
committee's note, 56 F.R.D. 183, 324. E.g., United States v. Paducah Towing Co. (In re
Paducah Towing), 692 F.2d 412, 418 (6th Cir. 1982). The opportunity for cross-examination
must be "meaningful in light of the circumstances which prevail when the former testimony is
offered." C. McCORMICK, supra note 4, § 255, at 616. Generally, courts examine four factors
in determining whether the opportunity for cross-examination was meaningful: (1) the nature
of the proceeding or hearing; (2) notice to the opponent; (3) the nature of the parties and issues
in the prior and subsequent proceedings; and (4) the cross-examination itself. See Note, supra
note 57, at 358.
·
204. For a description of when a witness is "unavailable," see supra note 3.
205. Another example would be an action involving the wife's subrogated claim.
206. See, e.g., Parsons v. Parsons, 45 Mo. 265, 267 (1870); see also Nemeth v. Aluminum
Cooking Utensil Co., 146 Cal. App. 2d 405, 408, 304 P.2d 129, 130-31 (1956) (holding that
wife was bound with a judgment from a prior proceeding to which her husband was a party
because a wife is in privity with her husband). But see Anderson v. Hultberg, 247 F. 273, 278
(8th Cir.) (Former testimony taken in a proceeding to which husband was a party was not
admissible against his wife in a subsequent proceeding because a husband and wife are not in
privity with each other, and therefore, the wife was not a party or in privity with any party to
the prior proceeding.), cert. denied, 248 U.S. 581 (1918); Lord v. Boschert, 47 Ohio App. 54,
55-56, 189 N.E. 863,864 (1934) (Former testimony taken in a proceeding to which wife was a
party was not admissible against her husband in a subsequent proceeding because the
testimony was not offered against the same parties.); Vail v. Craig, 13 N.Y. Sup. Ct. 448, 450
(1888) (Former testimony taken in a proceeding to which wife was a party was not admissible
against her husband in a subsequent proceeding because the testimony was not offered against
the same parties.).
207. 349 Mo. 13, 160 S.W.2d 740 (1942) (reviewed by J. Falknor, Former Testimony in the
Uniform Rules: A Comment, 38 N.Y.U. L. REV. 651, 654 (1963)).
208. Id. at 15, 160 S. W .2d at 742.

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band filed a suit against the city that sought damages for the loss of
his wife's services arising from her injuries sustained in this same accident. 209 In preparation for that suit, the city took the depositions of
two eyewitnesses. The trial court, however, dismissed the husband's
suit. 210 After the dismissal, both eyewitnesses became unavailable. 211
The wife then brought a negligence action for her injuries. 212 The city
sought to offer the former testimony concerning the bus' sudden
movement against the wife. 213 The trial court admitted the former
testimony over the wife's obj~ctions. 214 The Supreme Court of Missouri upheld the admission of deposition testimony against the wife
because her husband had cross-examined the now unavailable witnesses. 215 The court stated that "not only [was there] an identity of
issues, but there was a complete identity of interest between Mr. Bartlett and his wife." 216 The parties' identical access to information promoted their identity of interest. 217 Both parties were represented by
the same attorney, and he apparently prepared equally well and made
the same tactical decisions for both parties. 218
It is an open question whether the result would be the same if the
parties were engaged or dating. In such situations, a sufficiently close
relationship may not exist. The interests and desires of parties that
are engaged or dating are unlikely to be as interdependent as those of
a married couple. 219 Nonmarried couples are therefore more likely to
make different decisions concerning arguments and strategy in litigation than are married couples. Also, the parties' state of preparation
could differ, especially if they do not retain the same attorney.
209. Id. at 16, 160 S.W.2d at 742.
210. Id. at 15-16, 160 S.W.2d at 742.
211. Id. at 16, 160 S.W.2d at 742.
212. Id. at 15, 160 S.W.2d at 741.
213. Id. at 15-16, 160 S.W.2d at 742.
214. Id. at 15, 160 S.W.2d at 741.
215. Id. at 21, 160 S.W.2d at 745.
216. Id.
217. Id.
218. Id.
219. See Joiner v. Joiner, 246 Ga. 77, 78, 268 S.E.2d 661; 663 (1980) (Marriage creates a
symbiotic relationship.); cf Finn v. Drtina, 30 Wash. 2d 814, 819, 194 P.2d 347, 351 (1948)
(Guest/sister was not permitted to offer former testimony against her host/brother despite the
fact that her brother was a party to the prior proceeding because her knowledge of the facts
surrounding the case did not ensure an identity of interest.).
Courts have created entitlements and obligations for cohabitants. See, e.g., Marvin v.
Marvin, 18 Cal. 3d 360, 134 Cal. Rptr. 815, 557 P.2d 106 (1976). It is unclear, however,
whether the relationship between cohabitants is sufficiently close. The interests and desires of
cohabitants appear to be much more interdependent than those of parties who are only dating.
It is presumptuous, however, to say that the interests of cohabitants are any more
interdependent than those of parties who are engaged, but not cohabitating.

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ADMISSIBILITY OF FORMER TESTIMONY

1005

Finally, the effectiveness of cross-examination often depends upon the
information furnished to the examining counsel by his client. The
nature and volatility of the engaged or dating relationships make it
possible that the parties will not share a complete picture of the lawsuit with each other. And if they do not,· each party's counsel may
shape the course of the lawsuit in different ways because each has
varying degrees of access to information concerning the litigation.
Based upon Rule 804(b)(l)'s fairness concerns, 220 this Comment
proposes a four-prong test to determine whether a sufficiently close
relationship exists between the predecessor in interest and the opponent of the hearsay. First, courts should examine whether the parties
made, or would have made, similar tactical decisions. 221 Second,
courts should analyze whether the parties had similar states of preparation, including but not limited to, attorneys of similar quality. 222
Third, courts should determine whether the parties had similar access
to information. Fourth, the courts should consider any factor that
they deem just and proper, including but not limited to, whether the
parties are substantially the same. 223 This test would achieve Congress' primary objective of binding the opponent of the hearsay with
another person's cross-examination only when it is fair to do so.
Adhering to these fairness concerns will also help achieve Congress'
secondary objective of admitting trustworthy evidence by circumstantially guaranteeing that the predecessor's cross-examination was sufficiently similar to that which would have been conducted by the
opponent of the hearsay. 224 Moreover, this test would further the effi220. See supra notes 59-62 and accompanying text.
221. See, e.g., Charles H. Demarest, Inc. v. United States, 174 F. Supp. 380, 389 (Cust. Ct.
1959) (The common law parties requirement of the former testimony exception ensures
identical interests, and it is, therefore, fair to bind a party in a subsequent proceeding with his
predecessor in interest's tactical decisions whether to cross-examine or not only if the
requirement is satisfied.).
222. The Subcommittee on Criminal Justice believed that the predecessor in interest
requirement should ·help ensure that the parties retained attorneys of comparable training and
experience. See Weissenberger, supra note 64, at 354-55 (statements of Rep. William L.
Hungate and Rep. Wiley Mayne).
223. See M. GRAHAM, supra note 61, at 257. Some commentators have contended that
rules reflecting policies such as fairness, go beyond the basic evidentiary concern of reliability
and therefore, should not affect the admissibility of former testimony. See E. CLEARY, supra
note 87, § 318, at 765-66. Despite these assertions, Rule 102 of the Federal Rules of Evidence
declares the need for fairness in applying the Rules. FED. R. Evm. 102.
224. Hearsay is excluded principally because it is less trustworthy than a witness' testimony
that is subject to cross-examination. See 2 J. WJGMORE, supra note 45, § 1362, at 1674-78. In
the 804(b)(l) context, the witness was subject to cross-examination, but his subsequent
unavailability prevented cross-examination in the subsequent proceeding. If the crossexamination requirement is not met, the evidence is excluded unless the evidence is either
necessary or has other circumstantial guarantees of trustworthiness. See Comment, Hearsay
Under the Proposed Federal Rules: A Discretionary Approach, 15 WAYNE L. REV. 1079, 1201

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ciency objective of the Federal Rules of Evidence embodied in Rule
102.22s
(1969). The unavailability of the declarant creates a necessity for the former testimony. Id.
Moreover, former testimony exhibits some traditional circumstantial guarantees of
trustworthiness; i.e., the declarant was under oath and subject to the penalty of perjury when
his testimony was tested by the predecessor in interest in the prior proceeding. Fairness,
however, was Congress' primary concern in adopting Rule 804(b)(l). See Turner supra note
89, at 263 (Congress was concerned with fairly binding the opponent of the hearsay.); supra
notes 59-62 and accompanying text. Because hearsay is usually excluded on the grounds that
it is less trustworthy than other testimony, Congress' secondary objective must have been
admitting trustworthy evidence.
225. FED. R. Evm. 102. It is interesting to analyze the effect that the sufficiently-closerelationship test would have had on the cases discussed in this Comment. In Lloyd v.
American Export Lines, Inc., for example, it is unclear whether the parties enjoyed a
sufficiently close relationship. 580 F.2d 1179 (3d Cir.), cert. denied, 439 U.S. 969 (1978); see
supra notes 137-49 and accompanying text. The Coast Guard and Alvarez had retained
different attorneys and the parties' respective degrees of preparation are not known. Both
parties had a substantial interest in the controversy, but for different reasons. Through a
presumably impartial government investigator, the Coast Guard wanted to determine whether
it should revoke Lloyd's license. Id. at 1182. Alvarez, on the other hand, sought to recover
damages for his injuries. Although both parties probably had similar acces~ to information
because each had been represented by counsel in the prior proceeding, Alvarez's counsel may
hav~ made very different tactical decisions in cross-examining Lloyd with regard to who
initiated the altercation. Id.
In Pacelli v. Nassau County Police Department, a sufficiently close relationship existed
between the federal government actively enforcing the criminal law and the municipality and
its police officers doing the same. 639 F. Supp. 1382 (E.D.N.Y. 1986); see supra notes 150-62
and accompanying text. Each of the government-employed attorneys would be similarly
prepared. Although different tactical decisions concerning the accomplice's testimony
regarding the location of the murder weapon would be likely in the subsequent proceeding, the
location of the murder weapon was not disputed in the prior proceeding. Id. at 1386. Thus,
the prosecutor's decision not to inquire into the truth of the accomplice's statement as to the
location of the murder weapon appears to have been strategically sound. This strategy might
not have been sound in the subsequent civil rights action, however, which alleges that the
detectives fabricated evidence and manufactured the accomplice's confession. Nonetheless,
whether the prosecutor had a similar interest and motive to cross-examine the accomplice has
no effect on whether the predecessor-in-interest exception to Rule 804(b)(l)'s opportunity
requirement has been satisfied. The municipality and its officers were personally involved in
the incident that spawned the litigation and therefore appear to have had sufficient access to
information.
:rhe parties in United States v. Paducah Towing Co. did not have a sufficiently close
relationship. 692 F.2d 412 (6th Cir. 1982); see supra notes 164-71 and accompanying text. In
the prior proceeding, a nonlawyer warrant officer had represented the Coast Guard, which was
the alleged predecessor in interest of Exxon. Id. at 417. Exxon, the party opposing admission
of the former testimony, probably would have made more skilled tactical decisions concerning
the ship captain's testimony. As illustrated in Paducah, it is usually possible to identify from
the record whether the predecessor's inadequate state of preparation resulted from his counsel
"not possess[ing] the skills that one would expect of a marginally competent attorney." Id. at
419. See generally Holloway v. Arkansas, 435 U.S. 475,490 (1978) (The record may reveal an
attorney's failure to undertake specific trial tasks.). Moreover, Exxon's corporate counsel
would not have prepared for litigation in the same manner as the warrant officer did.
In Maxwell v. City of Springfield, a sufficiently close relationship existed between the city
and the bus driver. 705 S.W.2d 90 (Mo. Ct. App. 1986); see supra notes 172-79 and
accompanying text. The same attorney represented both parties. Id. at 91. Presumably, this

1988]

ADMISSIBILITY OF FORMER TESTIMONY

VI.

1007

CONCLUSION

Establishing whether a sufficiently close relationship exists
between the predecessor in interest and the opponent of the hearsay
testimony adheres to Rule 804(b)(l)'s legislative history, which indicates that Congress was concerned with the quality of representation
in the prior proceeding. Simply put, a sufficiently-close-relationship
analysis fairly binds parties whose interests were adequately represented in the prior proceeding.
This analysis provides a necessary check upon the potential
abuses of the current interpretations of the term "predecessor in interest." The two approaches that federal courts most often utilize, the
community-of-interest approach and the similar-interest-and-motive
approach, focus solely upon the existence of similar issues. Courts
attorney prepared equally well for each party. In fact, this arrangement arguably improved
each party's state of preparation. Tactical decisions the attorney made on behalf of the city
probably affected those he made on behalf of the bus driver. Id. The dissent argued that the
parties' tactical decisions would differ because of the possibility of indemnification of the city
by the servant. Id. at 97 (Maus, J. dissenting). Indemnification of the city by its bus driver,
however, was highly unlikely in Maxwell. This is based on the fact that the city and its bus
driver retained the same attorney. Counsel for the city would not involve himself in such an
obvious conflict of interest by representing the city and its bus driver if he was going to seek
indemnification from the bus driver. Because the bus driver knowingly accepted this situation,
it is fair to bind him with his employer's tactical decisions. Moreover, discovery in the case
had been consolidated and both parties therefore had almost identical access to information.
A sufficiently close relationship between a master and servant usually does not exist, however,
when a servant has previously cross-examined the witness. But see Goodrich v. Hanson and
Pearson, 33 Ill. 499, 507-08 (1864) (Testimony from a prior proceeding brought by an agent
could be offered by his principal against the same defendant, because the agent had been privy
to the principal's interests and had represented those interests adequately.). The master's
superior resources make it likely that his attorney and state of preparation would differ
substantially from his servant's. Consequently, a master may possess much better access to
information concerning a lawsuit. Moreover, a master and his servant are not privies. But see
Cumberland Coal & Iron Co. v. Jefferies, 27 Md. 526, 534 (1867) (A master and its servants
are the same parties, and therefore, former testimony was admissible against the servants in a
subsequent proceeding.).
Under the facts of In re Van Houten, there may not have been a sufficiently close
relationship between the debtor's trustee and the debtor's creditor. 56 Bankr. 891 (W.D.
Mich. 1986); see supra notes 180-86 and accompanying text. The amount of money loaned to
the debtor by the creditor was probably much less then the value of the assets involved in the
subsequent bankruptcy proceeding. Id. at 893-94. The court's opinion states only that the
creditor loaned the debtor "various sums of money." The creditor, therefore, had much less
economic incentive to prepare actively for the prior proceeding. The court's opinion does not
reveal what kind of relationship, if any, had existed between the debtor and the trustee. Prior
to the original litigation, however, the creditor and the debtor were both business associates
and friends. Id. Furthermore, the fact that the debtor was alive when his creditor conducted
discovery indicates that the creditor possessed much better access to information as to whether
the debtor actually owned the home. It is therefore unclear whether a sufficiently close
relationship existed because although the debtor may have had less economic incentive in the
prior proceeding, she possessed much better access to information than the trustee in
bankruptcy.

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seem somewhat reluctant to expend judicia] resources on an intensive
examination of the relationship between the parties. The mere presence of similar issues, however, does not insure that the subsequent
party's interests were .adequately represented by his predecessor.
Only an exacting analysis of the parties' relationship will assure that it
is fair to bind the present party with his predecessor's cross-examination of the proffered former testimony.
MARK LAWRENCE