In Wahl v. State,[1] the supreme court held that the former-testimony exception to the hearsay rule does not require the opposing party to have had an identical motive to develop the testimony during the previous proceeding; it further held that the superior court did not abuse its discretion in ruling that Wahl did not used reasonable means to procure Hardwick’s testimony merely because Wahl did not seek out the state’s or court’s resources for help. In 2013, Wahl went to trial for the murder of Orcutt. Wahl’s primary defense was that Hardwick was likely responsible for Orcutt’s murder. After a defense investigator conducted a thorough search for Hardwick to no avail, Wahl sought to introduce Hardwick’s grand jury testimony under Alaska Evidence Rule 804(b)(1), which provides that the hearsay rule does not exclude certain former testimony of an unavailable declarant. The superior court denied Wahl’s request on three grounds, two of which are discussed below. First, the court ruled that the defense did not use reasonable means to secure Hardwick’s attendance, emphasizing that Wahl did not ask the state or the court for help. Second, the court noted that the former-testimony rule did not apply because the State did not have a similar motive to develop Hardwick’s testimony. Affirming the superior court’s ruling, the supreme court held that the lower court did not abuse its discretion in determining that Hardwick was not unavailable solely because Wahl did not ask the state for help, even when such a request might have been futile. However, the supreme court rejected the lower court’s second rationale: that the State did not have a similar motive. In so holding, the court adopted a broad interpretation of the “similar motive” language in Rule 804(b)(1) and rejected the “similar intensity of motive” test. The court held that the latter test is contrary to the rule’s plain language, which requires a similar but not identical motivation. Applying the rule to Wahl’s case, the court concluded that the State had the same motive during the trial and grand jury proceedings: to establish that Wahl committed murder. Affirming in part and reversing in part the superior court, the supreme court held that the former-testimony exception to the hearsay rule does not require the opposing party to have had an identical motive to develop the testimony during the previous proceeding; it further held that the superior court did not abuse its discretion in ruling that Wahl did not used reasonable means to procure Hardwick’s testimony merely because Wahl did not seek out the state’s or court’s resources for help.
[1] 441 P.3d 424 (Alaska 2019).
