Article by Glen Weissenberger
A substantial temptation exists to permit the prosecution to introduce the transcribed grand jury testimony of a witness who subsequently becomes unavailable to provide live testimony at a federal criminal trial. While a transcript generated at a grand jury hearing would unquestionably be hearsay under the Federal Rules of Evidence when offered for the truth of its contents at any subsequent proceeding, the testimony it contains possesses an aura of reliability which is at least comparable to most forms of admissible hearsay. The testimony was given under oath subject to the penalty of perjury. The formality of the proceeding militates in favor of accuracy. Moreover, because a record is made, there is little risk of mistranscription. Finally, a quick survey of the cases considering the admissibility of grand jury transcripts in federal criminal cases reveals that grand jury witnesses appear to have an extraordinary proclivity for vanishing or becoming otherwise unavailable once they have testified. Consequently, it might appear contrary to the pursuit of truth to deny the prosecution the use of helpful evidence to prove significant aspects of its case where other evidence is wanting.
The so-called ‘residual’ or ‘catch-all’ exceptions invite trial courts to admit grand jury transcripts as evidence against the accused in federal criminal proceedings. Under specified circumstances, the residual exceptions may be used to admit evidence which otherwise fails to satisfy the recognized hearsay exceptions. Not surprisingly, federal prosecutors have resorted to the residual exceptions in their efforts to admit the grand jury testimony of subsequently unavailable witnesses precisely because this form of hearsay fails to satisfy the former testimony exception. These efforts to salvage remnantary evidence have engaged the federal judiciary in a debate which is fertile for Supreme Court resolution. The circuit courts are presently divided concerning whether admission of grand jury transcripts of unavailable witnesses against a criminal accused meets the requirements of the residual exceptions. Likewise, the circuit courts also do not agree whether receipt of the evidence in this context denies the accused his right under the sixth amendment to confront witnesses. As this article will demonstrate, however, the residual exceptions are inappropriate vehicles for the admission of grand jury transcripts when offered against the accused. Consequently, because the Rules of Evidence resolve the question of exclusion in favor of the accused, the sixth amendment issue should not be reached.
While the legislative history underlying many of the Federal Rules of Evidence is scant and generally uneventful, significant developments demarcate the legislative histories of the residual exceptions and the former testimony exception. If these notable legislative events are ignored, courts may continue to misapply the residual exceptions as authority for admitting grand jury transcripts when offered against a criminal defendant.
About the Author
Glen Weissenberger. Professor of Law, University of Cincinnati, College of Law. B.A. University of Cincinnati, 1969; J.D., Harvard University, 1972.
Citation
59 Tul. L. Rev. 335 (1984)