Abernethy's Testimony Case Study

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II. The Department of Justice did not have substantially the same degree of interest in developing Abernethy’s testimony in the grand jury because of the procedural and substantive differences between the two proceedings.
In an effort to protect evidentiary integrity, the judicial system is hesitant to allow hearsay into the courtroom during trial. Congress has enacted a general ban that widely prohibits the admission of hearsay. United States v. Salerno, 505 U.S. 317, 322 (1992). However, some limited exceptions to the hearsay rule have been allowed. See Fed. R. Evid. 804. In particular, congress crafted twenty-four exceptions in Rule 803 and five additional exceptions in Rule 804. Salerno, 505 U.S. at 322. Therefore, presumably when
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For former testimony given by a unavailable declarant to be admissible in trial, the testimony: (1) must have been given as a witness at a trial, hearing, or lawful deposition and (2) can only be offered against a party who had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination. Fed. R. Evid. 804. DiNofrio contends that Abernethy’s testimony given at the grand jury proceedings satisfies these conditions. It is undisputed that Abernethy was unavailable as a witness and that the grand jury proceedings satisfy the first part of the hearsay exception. It is not true, however, that the prosecution had similar motive or opportunity to develop Abernethy’s testimony such that is satisfies the exception. The facts show that the prosecution’s motive to fully develop testimony was substantially less than it would have been at trial.
When evaluating whether prosecutors have the same motive at a grand jury hearing as they would at trial, courts should use a fact-specific approach because it better reflects this Court’s precedent and the text of the rule. Under a fact-based approach, the Department of Justice did not have a substantially similar motive in questioning Abernethy because of the preliminary nature of the grand juries. Finally, even if this Court were to adapt a categorical rule about grand jury hearings,

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