🗨 Hearsay Exceptions: Prior Recorded Testimony

According to the Supreme Judicial Court, a witness’s prior testimony may be used in subsequent court proceedings, where the prior testimony was

1. given by a person, now unavailable,
2. in a proceeding addressed to substantially the same issues as in the current proceeding,
3. with reasonable opportunity and similar motivation on the prior occasion for cross-examination of the declarant by the party against whom the testimony is now being offered.

See Commonwealth v. Trigone, 397 Mass. 633, 638 (1986).

In most cases, this exception does not apply to grand jury testimony unless the party seeking to introduce the testimony “can establish that the Commonwealth [i.e., the prosecutor] had an opportunity and similar motive to develop [the declarant’s testimony] fully.” See Commonwealth v. Clemente, 452 Mass. 295, 315 (2008).