Salerno et.al. were accused of a number of offenses
related to being mobsters, specifically fraud involving construction
companies in New York City.
Specifically, the charges were that 6 concrete companies
(aka 'The Club') conspired to fix prices.
At the grand jury, the prosecution had two concrete
company owners (DeMatteis and Bruno) testify, but they testified that they
were not members of 'The Club'.
At the actual trial, the prosecution introduced evidence
claiming that DeMatteis and Bruno were indeed members of 'The Club'.
In response, Salerno called them to testify, but this
time they refused, citing the 5th Amendment.
Salerno attempted to get the previous testimony from the
grand jury admitted into evidence.
Salerno argued that this fell under the FRE 804(b)(1)
exception to hearsay because they were unavailable.
The Trial Court refused to allow the previous testimony to
The Trial Court found that the FRE 804(b)(1)
exception only applies when a party had a "similar motive to
develop the testimony by direct, cross, or redirect examination."
Basically, since questioning a witness in a grand jury
is different than doing it at trial, the testimony would likely be
different, and therefore could not be used.
The prosecution had no motive to impeach the testimony,
so they didn't press the issue like they would have in an actual trial.
The Trial Court found Salerno guilty. He appealed.
The Appellate Court reversed on the grounds that the
evidence had been improperly excluded. The prosecution appealed.
The Appellate Court found that the prosecution's motives
for question the witness were irrelevant.
The US Supreme Court reversed the Appellate Court and
excluded the testimony.
The US Supreme Court found that there is an absolute
requirement for similar motive in order to use the FRE
The Court further found that the prosecution at a grand
jury proceeding always has a motive to maintain secrecy and so usually
chooses not to impeach a witness by presenting contradictory evidence.
However, the Court found that the decision about whether
or not there was similar motive was a question of fact, and so deferred
to the Trial Court's finding (which in this case was that there was no similar
In this case, the witnesses had given exculpatory
testimony at the grand jury. If they had given damning information that
helped the prosecution, then that testimony would not have been admissible
because Salerno never had an opportunity at the grand jury to cross
examine the witness.
Unless if the witnesses were refusing to testify because Salerno was threatening them. In that case, the evidence could come in under FRE
804(b)(6) (statements made by a declarant made unavailable by the
If the witnesses didn't take the fifth and instead just
claimed that they didn't remember what happened, the court might conclude
that the statements made by the witnesses are inconsistent with prior
statements made under oath, which allows the grand jury testimony to come
in under FRE 801(d)(1)(a).