United States v. Salerno
505 U.S. 317 (1992)

  • Salerno et.al. were accused of a number of offenses related to being mobsters, specifically fraud involving construction companies in New York City.
    • Specifically, the charges were that 6 concrete companies (aka ‘The Club’) conspired to fix prices.
  • At the grand jury, the prosecution had two concrete company owners (DeMatteis and Bruno) testify, but they testified that they were not members of ‘The Club’.
  • At the actual trial, the prosecution introduced evidence claiming that DeMatteis and Bruno were indeed members of ‘The Club’.
    • In response, Salerno called them to testify, but this time they refused, citing the 5th Amendment.
  • Salerno attempted to get the previous testimony from the grand jury admitted into evidence.
    • Salerno argued that this fell under the FRE 804(b)(1) exception to hearsay because they were unavailable.
  • The Trial Court refused to allow the previous testimony to be admitted.
    • The Trial Court found that the FRE 804(b)(1) exception only applies when a party had a “similar motive to develop the testimony by direct, cross, or redirect examination.”
      • Basically, since questioning a witness in a grand jury is different than doing it at trial, the testimony would likely be different, and therefore could not be used.
        • The prosecution had no motive to impeach the testimony, so they didn’t press the issue like they would have in an actual trial.
  • The Trial Court found Salerno guilty.  He appealed.
  • The Appellate Court reversed on the grounds that the evidence had been improperly excluded.  The prosecution appealed.
    • The Appellate Court found that the prosecution’s motives for question the witness were irrelevant.
  • The US Supreme Court reversed the Appellate Court and excluded the testimony.
    • The US Supreme Court found that there is an absolute requirement for similar motive in order to use the FRE 804(b)(1) exception.
    • The Court further found that the prosecution at a grand jury proceeding always has a motive to maintain secrecy and so usually chooses not to impeach a witness by presenting contradictory evidence.
      • However, the Court found that the decision about whether or not there was similar motive was a question of fact, and so deferred to the Trial Court’s finding (which in this case was that there was no similar motive).
  • In this case, the witnesses had given exculpatory testimony at the grand jury.  If they had given damning information that helped the prosecution, then that testimony would not have been admissible because Salerno never had an opportunity at the grand jury to cross examine the witness.
    • Unless if the witnesses were refusing to testify because Salerno was threatening them.  In that case, the evidence could come in under FRE 804(b)(6) (statements made by a declarant made unavailable by the defendant’s wrongdoing).
    • If the witnesses didn’t take the fifth and instead just claimed that they didn’t remember what happened, the court might conclude that the statements made by the witnesses are inconsistent with prior statements made under oath, which allows the grand jury testimony to come in under FRE 801(d)(1)(a).