United States v. Salerno

Background

Seven men accused of taking part in the Genovese crime family were tried on RICO and related charges tied to bid-rigging in New York construction. Two owners of a concrete company, Frederick DeMatteis and Pasquale Bruno, had testified before a grand jury under immunity and denied their company’s participation in the so-called “Club.” At trial both invoked the Fifth Amendment and refused to testify, so the defendants asked to admit the earlier grand jury transcripts as evidence. The District Court excluded those transcripts and the Second Circuit reversed.

Reasoning

The central question was whether a defendant may use grand jury testimony when the witness later claims the Fifth Amendment at trial. The Supreme Court held that Federal Rule of Evidence 804(b)(1) must be read literally: a party seeking to admit prior testimony must show the opposing side had an “opportunity and similar motive” to develop that testimony earlier. The Court rejected a free-standing fairness exception and reversed the Court of Appeals, remanding for a factual determination of whether prosecutors had a similar motive before the grand jury.

Real world impact

The decision means courts must apply Rule 804(b)(1)’s elements as written before admitting prior grand jury testimony. Criminal defendants who hope to use grand jury transcripts when a witness pleads the Fifth will face the same-showing requirement. The Supreme Court’s order is not a final admission ruling here; the case was sent back for lower courts to decide whether the government’s grand jury motive matched its trial motive.

Dissents or concurrances

Justice Blackmun agreed the factual question should be examined on remand, stressing the similar-motive inquiry is factual. Justice Stevens dissented, arguing the government clearly had a similar motive and the transcripts should have been admitted.