United States v. Salerno

Supreme Court of the United States · 1992 · Evidence

505 U.S. 317 (1992)

Updated August 1, 2026

Evidenceformer testimonysimilar motivehearsaygrand jury testimonyFederal Rule of Evidence 804(b)(1)hearsay exceptionunavailable witness

Facts

Respondents were prosecuted on RICO and related charges arising from alleged fraud in the New York construction industry. Two Cedar Park owners, DeMatteis and Bruno, had testified before the grand jury under immunity and repeatedly stated that neither they nor Cedar Park had participated in the alleged concrete-company "Club." At trial, when respondents subpoenaed those witnesses to repeat that exculpatory testimony, both invoked the Fifth Amendment and refused to testify. Respondents then sought to introduce the grand jury transcripts under Rule 804(b)(1), but the district court excluded them because it concluded the Government lacked a similar motive to develop that testimony before the grand jury.

Issue

Does Federal Rule of Evidence 804(b)(1) permit criminal defendants to introduce a witness's grand jury testimony when the witness is unavailable at trial because he invokes the Fifth Amendment, even if the party against whom the testimony is offered did not have a similar motive to develop the testimony? More specifically, may a court disregard the Rule's similar-motive requirement on grounds of adversarial fairness?

Rule

Under Federal Rule of Evidence 804(b)(1), former testimony of an unavailable witness is admissible only if the party against whom it is offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Courts may not create an adversarial-fairness exception that dispenses with the Rule's express similar-motive requirement.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a federal fraud trial in Chicago, defendant Marcus Hale subpoenas Dana Ortiz, who previously testified before a grand jury under oath that Marcus was not involved in the billing scheme. At trial Dana properly invokes the Fifth Amendment and refuses to answer any substantive questions. Marcus offers the grand jury transcript, but the prosecution had not meaningfully challenged Dana's denials before the grand jury.

Should the court admit Dana's grand jury testimony under Rule 804(b)(1)?

Explanation. Rule 804(b)(1) applies only if each express element is satisfied, including unavailability, an earlier qualifying testimony, and that the party against whom it is offered had an opportunity and similar motive to develop it. The majority rejected any automatic defense-favoring exception for exculpatory grand jury testimony. It also did not hold that grand jury testimony is never admissible; it held only that courts may not bypass the similar-motive requirement.