1. This Court should adopt the balanced, fact-based approach laid out by the First and Second Circuits.
This Court should adopt the First and Second Circuit’s approach because this approach follows this Court’s precedent and accurately assesses motive and opportunity. The Second Circuit has developed a balanced approach to establishing whether or not similar motive is present in a case. See United States v. DiNapoli, 8 F.3d 909, 914 (2d Cir. 1993). The Second Circuit held that the inquiry as to similar motive must be fact specific. Id. at 914. This requirement stems from the Second Circuit’s deference to this Court’s opinion in Salerno, where this Court expressed a reluctance to recognize any general exception onto Rule 804(b)(1). Id. …show more content…
Id. at 913. The First Circuit, by expressly yielding to this Court’s precedent in Salerno, took the same approach when applying the rule. United States v. Omar, 104 F.3d 519, 523 (1st Cir. 1997). The First Circuit essentially found that there are significant procedural differences at trial than there are during a grand jury hearing. Id. At an ordinary trial, the positions of both parties are clear. Id. The witness is called by one side to advance its case and cross-examined by the other party to discredit that testimony. Id. Both parties have motive to treat the trial as a last chance with the witness, and if a new trial later becomes necessary, it is a fair assumption that each side has already done at the original trial all that they could have done at a new trial. Id. The First Circuit recognizes, however, that grand juries can typically be different. Id. The First Circuit notes that discrediting a grand jury witness is rarely essential, and there might be a motive to develop some testimony of a witness but not other parts of that same witness’s testimony. …show more content…
Omar, 104 F.3d at 524. A prosecutor also may have an important public interest in not prematurely disclosing investigative information or the identity of a cooperating witness, even though such information might be powerful ammunition to challenge the grand jury witness’s exonerating testimony. DiNapoli, 8 F3d at 913. In contrast, by the time of trial, the public interest in not disclosing this information has dissipated, and the prosecutor will have a strong motive to confront the witness with all available contradictory evidence.