Lloyd v. American Export Lines, Inc.

STERN, * District Judge,

concurring.

I join in the majority opinion, except insofar as it construes the “predecessor in interest” language of Rule 804(b)(1). The majority here holds that because the Coast Guard investigating officer shared a community of interest with Alvarez he was Alvarez’s predecessor in interest. I believe that this analysis is contrary to the Rule’s clear language and is foreclosed by its legislative history.

I do, however, agree with the result which the majority reaches. The testimony Lloyd gave at the Coast Guard hearing should have been admitted into evidence. I would hold that it is admissible, not under 804(b)(1), but rather under the catch-all exception to the hearsay rule, 804(b)(5).

As the majority points out, the rule enacted as 804(b)(1) as originally submitted by the Supreme Court, would have permitted the introduction of former testimony if the party against whom it was offered, or a person “with motive and interest similar” to the party, had an opportunity to examine the witness. But Congress rejected this approach.

The [House Judiciary] Committee considered that it is 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. The sole exception to this, in the Committee’s view, is when a party’s predecessor in interest in a civil action or proceeding had an opportunity and simi *1191 lar motive to examine the witness. The Committee amended the Rule to reflect these policy determinations.

H. R.Rep.No.650, 93d Cong. 1st Sess. 15 (1973). The Senate accepted the House change, although it may not have fully appreciated its significance. 1 See S.Rep.No. 1277, 93d Cong., 2d Sess. 28 (1974), quoted in Majority op., supra, at 1185.

It is true that Congress nowhere defined “predecessor in interest,” but it seems clear that this phrase, a term of art, was used in its narrow, substantive law sense. Although the commentators have expressed disapproval of this traditional and restrictive rule, they recognize that a “predecessor in interest” is defined in terms of a privity relationship.

“ ‘The term “privity” denotes 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 es-cheat.’ ”

Metropolitan St. Ry. v. Gumby, 99 F. 192 (2nd Cir. 1900), quoted in 11 Moore’s Federal Practice § 804.04[2], at VIII-265. See also 4 J. Weinstein & M. Berger, Weinstein’s Evidence, at 804-65.

The majority rejects the view that the Rule’s wording signals a return to the common law approach requiring privity or a common property interest between the parties, Majority op., supra, at 1185, n. 5 , and finds it sufficient that the Coast Guard investigator shared a community of interest with Alvarez. But community of interest seems to mean only that the investigating officer sought to establish the same facts as Alvarez attempted to prove in the instant suit. Used in this sense, community of interest means nothing more than similarity of interest or similarity of motive. But similar motive is a separate prerequisite to admissibility under 804(b)(1) and thus the majority’s analysis which reads “predecessor in interest” to mean nothing more than person with “similar motive” eliminates the predecessor in interest requirement entirety-

Moreover, while I appreciate the fact that the Coast Guard investigator sought to establish Lloyd’s wrongdoing and that Alvarez sought to do the same, I do not believe that this establishes the kind of “common motive” sufficient to satisfy 804(b)(1).

A prosecutor or an investigating officer represents no ordinary party. He shoulders a peculiar kind of duty, even to his very adversary, a duty which is foreign to the adversarial process among ordinary litigants. The prosecutor, it is true, must seek to vindicate the rights of the alleged victim, but his interests go far beyond that. His interest in a prosecution is not that he shall win a case, but that justice shall be done. See Berger v. United States, 295 U.S. 78 , 55 S.Ct. 629 , 79 L.Ed. 1314 (1935).

The interests of an attorney representing the government surely overlap with those of the private litigant, but they do not coincide. The investigating officer was under no duty to advance every arguable issue against Lloyd in the vindication of Alva *1192 rez’s interests, as Alvarez’s own counsel would have been. He simply did not represent Alvarez.

Thus, even if I could agree that Congress intended to relax the common law requirement of actual privity between the parties before prior testimony could be admitted, I cannot endorse a rule which would automatically render admissible against a party evidence which was elicited in a different proceeding by an unrelated person merely because both shared an interest in establishing the same facts. The majority’s holding makes admissible against Alvarez the testimony of all witnesses who appeared at the Coast Guard hearing — not just Lloyd — and this without any showing of necessity by the proponent of such evidence. Indeed, under the majority view, all kinds of testimony adduced at all kinds of administrative hearings — hearings before the Civil Aeronautics Board on airplane disasters; hearings before the Federal Communications Commission on misuse of broadcast licenses; hearings before the Securities and Exchange Commission on securities fraud, just by way of example — would be admissible in subsequent civil suits, albeit that the parties were entirely different. With all due respect, I think this goes too far. The net result would be charging the party against whom the hearsay evidence is being offered with all flaws in the manner in which the witness was previously handled by another, and all flaws in another’s choice of witnesses, the very result characterized by the House Judiciary Committee as “generally unfair.” 2

I would premise admission of Lloyd’s pri- or testimony on Rule 804(b)(5). 3 That rule excepts from the general hearsay bar

statement^] not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Trustworthiness of the prior testimony is sufficiently established because Lloyd’s testimony was given under oath and subjected to cross-examination. Lloyd’s version of his relationship with Alvarez and of the events of September 7 was clearly material to the issues the jury was called upon to decide. Aside from Alvarez, Lloyd was the only eyewitness to the altercation in the resistor house. Lloyd’s prior testimony was thus the sole probative evidence on the point for *1193 which it was offered. Rule 804(b)(5)’s final requirement, that the interests of justice be served by admission of the hearsay statement, is satisfied as well; admission of the prior testimony would make possible the presentation of a complete picture to the factfinder.

Most important, evaluating the proffered evidence under the catch-all exception, rather than under Rule 804(b)(1), requires a balancing of the potential unfairness to Alvarez — the factor with which Congress was so concerned — against the proponent’s compelling need for the testimony. The identical result could thus be reached without rewriting Rule 804(b)(1).

Herbert J. Stern, United States District Judge for the District of New Jersey, sitting by designation.

. The House made the following changes in the Court’s rule (matter stricken out is in brackets; new matter is in italics):

(b) Hearsay exceptions. — The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. — 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, [at the instance of or against a party with an opportunity to develop the testimony by direct, cross, or redirect examination, with motive and interest similar to those of the party against whom now offered.] 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.

4 J. Weinstein & M. Berger, Weinstein’s Evidence, at 804-7 (1977).

. Alvarez derived no benefit from the Coast Guard proceeding against Lloyd. His private action for damages in no way derives from or is enhanced by the Coast Guard hearing convened for the purpose of determining whether Lloyd’s papers should be revoked or suspended. This distinguishes the instant case from In re Master Key Antitrust Litigation, 72 F.R.D. 108 (D.Conn.), aff’d without published opinion, 551 F.2d 300 (2nd Cir. 1976), the only case in which 804(b)(1) has been construed. In Master Key, a private class action antitrust suit, defendants sought to introduce testimony given in a prior governmental antitrust action which preceded and gave rise to the private suit. The question was whether the United States could be deemed a predecessor in interest of the private plaintiffs for the purpose of Rule 804(b)(1). The court held that it could, but only after weighing “special considerations.”

The unique relationship between the Government’s antitrust enforcement suits and the

private actions which follow has Congressional recognition and ratification, which has in turn provided special benefits to the private plaintiffs. It has, for example tolled the applicable statute of limitations, and thus allowed them to extend the period for which they may recover. . . . Furthermore, the judgment in the earlier decision will be admissible in evidence (although it too is hearsay) and serves to establish their prima facie case.

72 F.R.D. at 109 (citations omitted). No such special circumstances, no quid pro quo, exist here.

. I note that Lloyd’s prior testimony is also admissible under Rule 803(24) the wording of which is identical to 804(b)(5) but which is operative notwithstanding the availability of the declarant. The presence of both 804(b)(5) and 803(24) is mystifying. One or the other seems to be superfluous.