Former testimony: identity of parties prong.
Req’t of identity of parties
Traditional view – The traditional view is quite narrow and requires complete identity between the parties; i.e., both of the present parties (the proponent of the evidence and the adversary) must have been parties to the former action for the testimony to be admissible.
Modern trend – The modern trend of authority in the states (but not in federal practice) is to reject the “identity of parties” req’t in favor of Wigmore’s looser test of identity of interest and motive. Under this test, a report of testimony given in a prior trial is admissible whenever the adverse party in the prior trial had an opportunity and similar motive to cross-examine the declarant as does the adverse party in the present proceeding.
Federal Rules approach – Under the FRE, a witness’s recorded testimony from some earlier trial, deposition, or proceeding is admissible only if the party against whom it is now being offered (i) was a party to the earlier trial or proceeding (or a predecessor in interest if a civil action); (ii) had an opportunity to examine the witness at that time; and (iii) had a similar motive to develop the witness’s testimony (by direct or cross-examination) as that which he now has.