MBE Rules · Evidence
Former testimony
FRE 804(b)(1)
The rule
Declarant unavailable. Testimony given at a prior trial, hearing, or deposition where the party against whom now offered (or in a civil case, a predecessor in interest) had an opportunity AND similar motive to develop the testimony.
In plain English
If a witness can't testify now but did in a past legal setting, their previous testimony can be used if the current opposing party had a fair chance to question them back then.
Worked example
At a previous hearing, the defendant's lawyer cross-examined a witness. Now, the witness is unavailable, so their earlier testimony can be used in the current trial.
Memory hook
Unavailable witness? Use past whispers. Prior testimony flies if same party had a chance to grill.
The trap
Students think: Any prior testimony works. Wrong, because the party must have had a similar motive to develop it. The actual test is opportunity plus motive.
How examiners test it
MBE setup: declarant unavailable, past civil deposition. Trap: students miss 'similar motive' requirement, assuming opportunity alone is enough.
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