709.2Former Testimony [Rule 804(b)(1)]

Last Updated: 07/22/21

Key Concepts

  • If the declarant is unavailable, testimony given by the declarant as a witness in another hearing is not barred by the hearsay rules as long as the party against whom the testimony is now being offered had an opportunity and similar motive to confront the testimony at the prior hearing
  • In criminal trials, former testimony is admissible against the defendant only if the defendant was present at the prior hearing and represented by counsel

The Basic Rule

Rule 804(b)(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, 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.

G.S. 8C-804(b)(1).

Hearsay is defined as a statement by the declarant, offered for the truth of the matter asserted, “other than one made by the declarant while testifying at the trial or hearing.” G.S. 8C-801(c). Therefore, even sworn testimony given under oath at an earlier court proceeding is considered hearsay when offered at a later trial or hearing. As hearsay, it is not admissible unless it is covered by an exception. See G.S. 8C-802; State v. Jolly, 332 N.C. 351 (1992).

Rule 804(b)(1) permits former testimony to be offered into evidence, but only if the declarant is unavailable and certain other conditions are met. For more information about when a declarant is deemed “unavailable,” see the preceding Evidence entry on Declarant Unavailable [Rule 804(a)]. The other criteria for admissibility under Rule 804(b)(1) are discussed below.

If the testimony is deemed admissible, it is typically introduced into evidence at the current trial or hearing by publishing or reading into the record an authenticated transcript of the prior testimony. See, e.g., State v. Grier, 314 N.C. 59 (1985) ("Easterling's prior recorded testimony was presented to the jury during the trial by means of reading from the transcript, after it had been authenticated by the court reporter who reported the first trial"); State v. Fox, 277 N.C. 1 (1970) (“official stenographic report of testimony given at a former trial" could be introduced into evidence pursuant to a hearsay exception "upon proof of its authenticity and accuracy”).

Practice Pointer

Jury Instructions?
There is no pattern jury instruction to explain to the jury in a criminal case what prior testimony is or how the jurors should evaluate it during their deliberations. Prosecutors offering prior testimony through a transcript may want to consider adapting the language found in Civil Pattern Jury Instruction 101.43, addressing the use of deposition testimony, and ask the court instruct the jury as follows before the testimony is introduced and again during the final instructions: "In the trial of this case, certain testimony [will now be/has been] presented to you by way of a written transcript, consisting of recorded answers given under oath to questions asked of the witness in advance of this trial by one or more of the attorneys for the parties in the case. You are to consider the credibility and weight of this testimony, insofar as possible, in the same way as if the witness were present and [testifying/testified] from the witness stand."

Requirements for Admissibility

Permissible Types of Testimony

Former testimony offered under this rule may come from "a deposition taken in compliance with law" or testimony given at "another hearing." G.S. 8C-804(b)(1). The term “hearing” encompasses more than just a prior trial; it also applies to testimony given in hearings on a variety of other matters including bond, witness voir dire, probable cause, juvenile proceedings, or guilty pleas. See, e.g., State v. Rollins, 226 N.C. App. 129 (2013) (plea hearing); State v. Ross, 216 N.C. App. 337 (2011) (probable cause hearing); State v. Finney, 358 N.C. 79 (2004) (witness voir dire); State v. Ramirez, 156 N.C. App. 249 (2003) (bond hearing); State v. Swindler, 129 N.C. App. 1 (1998) (prior trial); State v. Hunt, 339 N.C. 622 (1994) (prior trial); State v. Giles, 83 N.C. App. 487 (1986) (juvenile transfer hearing).

The testimony may even come from “the trial of another cause” (i.e., a hearing conducted in a different case), but only if the other cause involved the same “issue and subject matter at which the testimony is directed” and the other criteria below are satisfied. State v. Chandler, 324 N.C. 172 (1989).

Practice Pointer

Very rare
Although it is theoretically possible under Rule 804(b)(1) that the state could use prior testimony from a hearing involving different charges against the current defendant, or perhaps even testimony from a hearing involving a different defendant, in reality it is quite unlikely that such testimony could satisfy both of the other admissibility requirements discussed below: (i) similar motive to develop the testimony; and (ii) the defendant was actually present and represented by counsel.

Criminal Depositions?  G.S. 8-74 allows a criminal defendant to use a deposition to take and present the testimony of a witness who will not be available at trial, as long as the defense gives prior notice to the state and other criteria are met. There are no statutes or published North Carolina cases expressly authorizing the state to similarly depose a witness for later use at trial (e.g., a key witness who may not live until the trial date), but it might be permitted in exceptional circumstances if the confrontation clause and other practical and logistical concerns are satisfied. See Jessica Smith, "Remote Testimony and Related Procedures Impacting a Defendant's Confrontation Rights," Administration of Justice Bulletin, February 2013, p.15-16 (citing statutes and cases from other jurisdictions that do allow the prosecution to use deposition testimony in criminal cases, and noting that in extreme cases "North Carolina trial judges have exercised their inherent authority and ordered pretrial depositions"); cf. State v. Clonts, 254 N.C. App. 95 (2017) (deposition testimony not permitted where state failed to prove witness was unavailable and defendant's confrontation rights were not adequately preserved); State v. Ash, 169 N.C. App. 715 (2005) (error to allow deposition testimony to be offered at trial against defendant where trial court failed to make findings of fact that witness was unavailable).

Motive and Opportunity to Question

To be admissible as former testimony under Rule 804(b)(1), the party against whom the testimony is now being offered must have had both an opportunity and a similar motive to develop that testimony on the prior occasion through direct, cross, or redirect examination. G.S. 8C-804(b)(1).

Whether a party had a sufficiently similar motive and opportunity to challenge the prior testimony is a question that must be answered on a case-by-case basis, considering the nature of the testimony and the relative posture of the proceedings. See, e.g., State v. Rollins, 226 N.C. App. 129 (2013) (where defendant entered an Alford plea reserving his right to appeal, and a witness testified for the state at the plea hearing, “defendant was aware that further proceedings regarding his guilt for [the victim’s] murder were possible, and he had a motive to cross-examine [the witness] for purposes of these future proceedings[;]” therefore “defendant possessed a similar motive to cross-examine [the witness] during his Alford plea hearing as he would have had at trial. Thus, the trial court properly determined that [the witness’s] testimony was admissible under N.C. Gen. Stat. § 8C–1, Rule 804(b)(1).”); State v. Ramirez, 156 N.C. App. 249 (2003) (testimony of the defendant's former girlfriend offered at his bond hearing was properly admitted against him at trial, because the defendant had the same motive to cross-examine the witness at the bond hearing as he would have at his future trial: “to expand upon and possibly discredit [her] testimony.”); see also State v. Jackson, 30 N.C. App. 187 (1976) (deceased victim’s testimony from first trial was admissible at retrial, even though additional charges involving a second victim were consolidated with the prior charges at the retrial – both sets of charges arose out of same occurrence and defendant had a sufficient opportunity to cross-examine the first victim at the earlier trial). But see State v. Graham, 303 N.C. 521 (1981) (where defendant was charged as an accessory before the fact to murder in the first trial, but charged with aiding and abetting murder in the second trial, witness testimony from the first trial was not admissible at the second trial because at the first trial the defendant’s “sole motive and purpose in cross-examining [the witness]” was to challenge the elements of the accessory charge, and allowing that testimony into evidence at the second trial “would deprive defendant of his right to cross-examine [the witness] concerning the remaining elements of the offense of aiding and abetting”).

Practice Pointer

Federal court testimony?
Prior testimony from a federal hearing could be admissible against the defendant in state court, assuming all other admissibility criteria are satisfied (e.g., defendant was present and had a similar motive to cross-examine the witness), and assuming the defendant at the federal hearing was the same “party against whom the testimony is now offered” in state court. See G.S. 8C-804(b)(1)
However, the defendant should not be allowed to offer prior testimony from federal court against the state under this rule, because North Carolina is not the same party against whom that testimony was previously offered (i.e., the United States). See, e.g., Jackson v. United States, 638 F. Supp. 2d 514, n. 34 (W.D.N.C. 2009) (finding prior testimony from a state court proceeding was not admissible against the federal government for the same reason: “testimony is not hearsay if given at another hearing during which the party against whom the testimony is now offered ‘had an opportunity and similar motive to develop the testimony by’ cross-examination. Fed. R. Evid. 804(b)(1). Obviously, the United States was not a party to the state court trial which involved different charges, and it had neither opportunity nor motive to develop the testimony.”). 

Defendant Was Present and Represented

In criminal cases, the defendant’s confrontation rights further dictate that former testimony offered against the defendant is only admissible if, in addition to having a prior opportunity and motive to develop the witness’s testimony, the defendant was also: (i) present at the proceeding; and (ii) represented by counsel. See State v. Rollins, 226 N.C. App. 129 (2013); State v. Locklear, 363 N.C. 438 (2009); State v. Chandler, 324 N.C. 172 (1989). If all of those conditions are met, the defendant’s earlier opportunity to confront and cross-examine the witness satisfies the confrontation clause. See State v. Baymon, 336 N.C. 748 (1994); State v. Graham, 303 N.C. 521 (1981).

Portions of this entry were excerpted from Jessica Smith, “Criminal Evidence: Hearsay,” North Carolina Superior Court Judges’ Benchbook, October 2013.