trial or hearing in relation to the same subject-matter between the same parties or their legal representatives, as the case may be; and in such a case the opposite party may testify in opposition thereto.'
This statute poses at least two obstacles as a satisfactory solution to the unique problem before the Court.
First, are Brooks and Carrell 'parties' within the meaning of Section 303? Secondly, if so, does the phrase 'or becomes incapable of testifying' contemplate a witness who is present in court, competent to testify, who actually takes the stand and is sworn, but who then invokes his privilege against self-incrimination? The Court's conclusion on the former question obviates a decision on the latter. By its clear language, the statute is applicable only where the testimony sought to be used was given by a party and where the later proceeding in which it is offered is 'between the same parties or their legal representatives.' Although Brooks and Carrell were parties when they testified, neither is a party at this trial, nor is Franklin in any sense their legal representative. In other words, as the Court reads the provision, to be admissible, the testimony must be from one who was a party in the original proceedings and who is a party (personally or by legal representative) to the proceedings in which the prior testimony is offered. This conclusion is fortified by the final clause of Section 303 which provides that after the prior testimony is received, 'the opposite party may testify in opposition thereto.'
Therefore, Section 303 is not applicable on the facts of this case. However, this conclusion does not finally dispose of the Court's problem. It may still be argued that the statute is not exclusive and that the statements are admissible under the general common law fule of unavailable witnesses, referred to above. Whether Section 303 pre-empts all of the common law on the question of prior testimony; or rather, whether in certain cases prior testimony not within its scope is nevertheless admissible, is not necessary to determine here. The Court concludes that even if the common law rule admitting prior testimony has present vitality in this jurisdiction, it is not applicable on the facts of this case.
All of the cases relied on by the government to support the general rule of admissibility are distinguishable in important factual respects from the case at hand. In Exleton v. State, 30 Okl.Cr. 224, 235 P. 627 (1925), the witness whose testimony was offered by the government at the defendant's trial had been arrested with the defendant for the same offense, but was tried separately. At a preliminary hearing of the defendant alone, that witness was called as a state's witness and was cross-examined fully, as an adverse witness, by the defendant's counsel. Similarly, in Woodward v. State, 21 Ala.App. 417, 109 So. 119 (1926), the witness involved had been jointly indicted with the defendant, but was tried alone after a severance, and then voluntarily testified at the defendant's first trial. When the witness refused to testify at the retrial, the court permitted other witnesses, who had been present at the first trial and had heard the testimony and cross-examination, to relate the substance of the testimony of the absent witness. And again, in State v. Reidie, 142 Kan. 290, 46 P.2d 601 (1935), the general rule was applied where the witness, an accomplice of the defendant's failed to testify at the defendant's trial after having voluntarily testified at a preliminary hearing for the defendant. In all of the above cases, the witnesses initially testified for the government against the defendant; but not so in this case where the witnesses testified as defendants in their own behalf. In all of the above cases, the defendant not only had an opportunity to cross-examine, but in addition had compelling reason to utilize that opportunity to demonstrate that the witnesses were not telling the whole truth; but not so in this case where the witnesses were not adverse and where a vigorous cross-examination of an associate might have reflected badly on the defendant. In all of the above cases, it would have been in the defendant's best interests to capitalize on his opportunity to cross-examine in order to discredit and impeach the credibility of the witnesses against him; but not so in this case where the witnesses' testimony did not accuse the defendant, and impeachment of the others may well have undermined his own assertion of innocence. In all of the above cases, the subject matter or issue of the testimony illicited on direct examination was the defendant's guilt, but not so in this case where it was the innocence of co-defendants. Thus, in this case the 'opportunity' to cross-examine Brooks and Carrell was meaningful and real to the government, but the 'opportunity' to the defendant was ineffective in substance. So, too, in Christoffel v. United States, 91 U.S.App.D.C. 241, 200 F.2d 734 (1952), where the court permitted prior testimony of a deceased witness, that witness testified against and was adverse to the defendant, which factor provided the incentive to the defendant to subject the witness 'to the ordeal of a cross-examination' in sufficient scope to meaningfully satisfy his constitutional right to be confronted with the witnesses against him, see Mattox v. United States, 156 U.S. 237, 244, 15 S. Ct. 337, 39 L. Ed. 409 (1895).
The Court does not suggest that there must be a zealous cross-examination when the testimony is originally offered in order for it later to be admissible under the unavailable witness rule. It is assumed, arguendo, that an 'opportunity' for cross-examination is sufficient. However, the Court believes that the opportunity must be full, substantial and meaningful in view of the realities of the situation. Accordingly, the Court holds that where a witness for the government in a criminal trial is unavailable, his prior testimony in his own behalf as a defendant is not admissible in a later trial against a co-defendant who, at the time the testimony was given, had a naked opportunity, but no real need or incentive to thoroughly cross-examine his then co-defendant.