Volland-Golden v. City of Chicago

United States District Court for the Northern District of Illinois · 2015 · Evidence

89 F. Supp. 3d 983 (N.D. Ill. 2015)

Updated August 22, 2026

EvidenceHearsayFormer TestimonyRule 804(b)(1)Fed. R. Evid. 804(b)(1)Fed. R. Evid. 807predecessor in interestsimilar motive

Facts

The civil case arose from a February 25, 2012 traffic stop in which Volland and the defendant officers gave sharply conflicting accounts of what happened. At a January 28, 2013 state criminal trial on charges including resisting a peace officer and battery, Volland testified at length to his version of the incident, and a state prosecutor cross-examined him extensively; only Volland and the two officers testified, and Volland was acquitted. Volland later filed this civil action and then died of natural causes while it was pending, making him unavailable as a witness. His estate sought to admit his prior criminal-trial testimony, while defendants argued it was inadmissible hearsay.

Issue

Whether Volland's testimony from his prior criminal trial was admissible in this civil action under Federal Rule of Evidence 804(b)(1). More specifically, the questions were whether the State was a predecessor in interest to the civil defendants and whether the State had a similar motive to develop Volland's testimony through cross-examination.

Rule

Under Rule 804(b)(1), former testimony of an unavailable declarant is admissible in a civil case if it was given at a prior trial, hearing, or lawful deposition and is offered against a party whose predecessor in interest had an opportunity and similar motive to develop the testimony by examination. "Predecessor in interest" does not require strict privity; it is satisfied where the earlier party had roughly commensurate stake in the prior proceeding. Similar motive is a factual inquiry that may be evaluated using the Feldman factors: (1) type of proceeding, (2) trial strategy, (3) potential penalties or financial stakes, and (4) number of issues and parties.

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

In Seattle, Noah Mercer sued two city police officers for excessive force after an arrest. Noah died before trial, and his estate seeks to introduce Noah’s testimony from his earlier state criminal trial on resisting arrest, where a prosecutor cross-examined him extensively about the same encounter.

Under the majority approach in this case, is the prior testimony most likely admissible under Rule 804(b)(1)?

Explanation. Rule 804(b)(1) permits former testimony of an unavailable declarant when offered against a party whose predecessor in interest had an opportunity and similar motive to develop it. The opinion rejects a strict-privity view of predecessor in interest. A prosecutor opposing the witness in a criminal trial can qualify where the prosecutor had a roughly commensurate stake in discrediting the witness’s account of the same incident that the officers now seek to dispute in the civil case.