dissenting. The majority opinion unduly restricts prosecutors on what previous testimony of an unavailable witness can be introduced at trial. For that reason, I respectfully dissent.
At issue here is the testimony of Lakisha Smith, who was either present when the murder of Jermaine Jacko occurred or in the vicinity, depending on which version of her story you believe. Prior to trial, defense counsel called her as his witness at a bond-reduction hearing to determine, in effect, whether defendant Kelvin Beasley was the shooter. The reason for this is that her testimony would impact whether the bond would be reduced and whether Beasley could be released from jail, pending trial. Lakisha Smith had previously told police officers that Beasley was the shooter. However, when called by Beasley’s attorney as a witness, she testified that she had lied and that Beasley was not the shooter. She added that he left the scene before the murder. The prosecutor then cross-examined Smith and emphasized that she had changed her story.
There are several reasons why this testimony, because Smith was unavailable at the time of the trial, was admissible at trial. First, defense counsel clearly had an opportunity to examine Lakisha Smith prior to trial. See Crawford v. State, 541 U.S. 36 (2004). In fact, Smith was defense counsel’s witness at the bond-reduction hearing and was called to testify that she could not identify Beasley as the shooter.
Secondly, defense counsel had a “similar motive to develop the testimony.” Ark. R. Evid. 804(b)(1) (2007). Rule 804(b)(1) reads in full:
(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.
Thus, the previous testimony might be by deposition in another proceeding or part of a hearing in a different proceeding under the rule. It need not have occurred in a previous trial. The key point, however, is that there be a similar motive to develop the issue at the prior hearing.
Jack Weinstein makes the point in his treatise, as the majority correctly underscores, that similar motive does not mean identical motive but rather the inquiry should be directed to the “reliability” of the evidence admitted. Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 804.04[5] (2d ed. 1997). Here, defense counsel called Lakisha Smith as his witness to testify about whether she saw Beasley kill Jacko, and the prosecutor cross-examined her on the credibility of her testimony. The test for reliability was clearly met.
The majority’s discussion of a “full-fledged” hearing versus a limited hearing is also off center. A “full-fledged” hearing was first referenced by this court in Scott v. State, 272 Ark. 88, 612 S.W.2d 110 (1981), where we held that a preliminary hearing on probable cause to arrest could not be considered full fledged, when defense counsel, at times, opts not to cross-examine a state witness at these hearings as a matter of strategy. We next discussed a variety of situations where a similar motive to develop testimony did not exist in the case of Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002). Proctor involved a bond-revocation hearing, which, we pointed out, is not an adversarial hearing under our rules and a hearing where defense counsel need not even appear. We pointed out in Proctor, that grand-jury proceedings are not full hearings.
Those situations are markedly different from the facts of this case where defense counsel is the attorney who called Lakisha Smith as his witness to testify that she had misidentified Beasley to police officers as the shooter. The direct and cross-examination of this witness on that point took up eighteen pages of the abstract of testimony. This was not a limited hearing. The emphasis was on whether Lakisha Smith saw the killer — not whether Beasley was a flight risk — and the issue of whether she saw Beasley shoot Jacko was fully developed.
The majority also questions whether defense counsel had an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue and cites United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993), as authority. Certainly, a hearing on whether a bond should be reduced so one can get out of jail is not the same thing as a trial for murder. But in both proceedings, the issue of whether Lakisha Smith identified Beasley as the murderer was critically important and it was developed with intensity at the bond-reduction hearing. The majority falls into the trap of focusing on whether the two proceedings are similar rather than on the similar motive to develop the issue at both proceedings.
As a final point, the majority contends that testimony at trial of another witness regarding what Beasley was wearing at the shooting made defense counsel’s decision not to do a redirect examination at the prior hearing extremely important. That reasoning is hard to follow. Is what happens at trial the test for deciding whether counsel had a similar motive to develop testimony at a prior hearing? Surely not. If that were the test for “similar motive,” prior testimony would rarely, if ever, be admissible at trial. This holding by the majority, should it stand, is unduly strict and will act to hamper all parties in the future wishing to introduce testimony of unavailable witnesses.
I would not disallow Lakisha Smith’s testimony for the reasons adduced by the majority.