Opinion
10736-20 10744-20 13579-20 13686-20 13879-21 14022-21 23611-21 8474-23 11362-23
10-11-2024
WILKES ROCK NORTH LLC, WILKES INVESTMENTS NORTH LLC, TAX MATTERS PARTNER, ET AL., Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Mark V. Holmes Judge.
The trial of the valuation issue in Gretsch Stone, one of the cases in this consolidated group, will be at a special session of the Court set to begin on Monday, October 21, 2024. Petitioners have moved in limine for the admission of several transcripts from two other trials of the testimony of several witnesses. The witnesses have in common that they all have long experience in the local quarrying industry in the same area where the property in Gretsch Stone is located.
Petitioners' motion is based on the plausible observation that these witnesses have suffered enough. Each has already testified before in more than one conservation-easement trial. Their testimony is always about their own experience in the quarrying industry. Their testimony is remarkably the same from case to case. And they are all fact witnesses - not adequately compensated for the time and expense of repeatedly getting subpoenaed to testify in other peoples' cases.
But petitioners also say that they are available to testify again - they "will assuredly cooperate if subpoenaed."
Analysis
All must agree that petitioners want this prior testimony in the record of this case for the truth of what the witnesses said. It is clearly hearsay. But the general rule that bars the admission of hearsay comes with exceptions. Petitioners rely on the "residual exception" for the exclusion of hearsay in Federal Rule of Evidence 807.
Here's the relevant part of the Rule --
[(a)] Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804:
,,,
(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.
As sympathetic as we are with the witnesses, our analysis begins and ends with the italicized parts of the quoted Rule. Transcripts on paper are not more probative than live testimony. And witnesses who can and will appear if subpoenaed yet again are witnesses whose live testimony can be obtained through reasonable efforts.
It is customary for courts to begin their reasoning under Rule 807 with some general statement like the "residual 'exception is to be "used only rarely, in truly exceptional cases."'" United States v. Turner, 561 Fed.Appx. 312, 320 (5th Cir. 2014). It is thus not surprising that the caselaw generally does not all Rule 807's residual exception to "do an end run around Rule 804(b)(1)'s requirement that the witness be unavailable." Id. at 321.
We did find one case that did admit prior testimony of a witness under Rule 807. In State v. Hamilton, 308 Ga. 116, 126-128 (2020), the Georgia Supreme Court reasoned that the phrase "reasonable efforts" did not require a party to resubpoena nearly 30 fact witnesses who had already testified before the same judge in the same criminal matter about the same facts when more than eight years had passed between a criminal trial and a hearing.
But though our conservation-easement cases are approaching this odysseylike journey through the trial system, they are not there yet.
It is therefore
ORDERED that petitioners' October 7, 2024 motion in limine is denied.