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Comparison definition. Rule 804 of the Federal Rules of Evidence provides: (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (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. The Second Circuit has addressed how a court is to determine similarity of motive for purposes of Rule 804(b)(1). that the test must turn not only on whether the questioner is on the same side of the same issue at both proceedings, but also on whether the questioner had a substantially similar interest in asserting and prevailing on the issue. See United States v. DiNapoli, 8 F.3d 909, 912 (2nd Cir. 1993). The availability of cross-examination opportunities that were forgone is one factor to be considered, but is not conclusive because examiners will virtually ...
