Sometimes situations will arise where, at a criminal trial, the defendant wants to admit the grand jury testimony of a witness. Since grand jury hearings are ex parte proceedings, grand jury testimony will almost never be admissible on behalf of the government due to Confrontation Clause concerns. See Crawford v. Washington, 541 U.S. 36 (2004). An exception to this general rule is when the witness also testifies at trial and the testimony is admitted as a prior statement under Federal Rule of Evidence 801(d)(1). Usually, however, it is a defendant who will try to admit grand jury testimony when the witness gives exculpatory testimony at the grand jury proceeding, but then is unavailable at trial, often because the witness invokes a privilege.
Prior Statements
Perhaps the easiest way to admit grand jury testimony at trial is when the witness who testified at the grand jury proceeding then testifies at trial and gives testimony that is inconsistent with their grand jury testimony. In this situation, the witness may be impeached using their statements at the grand jury hearing under Rule 801(d)(1)(A). The prior statements technically are not hearsay, and are excluded from the rule against hearsay. See, e.g., United States v. Gajo, 290 F.3d 922, 931 (7th Cir. 2002) (“[A] trial witness’s grand jury testimony is not hearsay and is admissible as substantive evidence when it is inconsistent with his trial testimony . . . .”).
A witness’s grand jury statements is also admissible if they are consistent with their trial testimony and meet the other requirements of Rule 801(d)(1)(B). Prior consistent statements are admissible “to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying” or “to rehabilitate the declarant’s credibility as a witness when attacked on another ground.” Fed. R. Evid. 801(d)(B). In United States v. DeSimone, 488 F.3d 561, 575 (1st Cir. 2007), the First Circuit upheld the district court’s decision to admit grand jury testimony under Rule 801(d)(1)(B). The defendant was found guilty of filing a false tax return. Id. at 563. The defense argued that a witness, the defendant’s accountant, fabricated his trial testimony inculpating the defendant after he was threatened by a federal agent. Id. at 575. The court noted that “the prior consistent statement must have been made before the alleged influence, or motive to fabricate, arose.” Id. at 574 (quoting Tome v. United States, 513 U.S. 150, 158 (1995)). However, the threats that the defendant alleged influenced the witness’s testimony occurred after the witness’s grand jury testimony, which was consistent with his trial testimony, so the witness was allowed to testify as to what he said in the grand jury hearing to rebut the defense’s “claim of fabrication.” Id. at 575.
Both Rule 801(d)(1)(A) and (B) are good ways to use grand jury testimony to either attack a witness’s credibility or rebut an attack on their credibility, respectively.
Former Testimony Exception
The most obvious way to admit grand jury testimony at trial is under the former testimony exception to the rule against hearsay, Federal Rule of Evidence 804(b)(1). The Supreme Court all but held that grand jury hearings count as a “hearing” under Rule 804(b)(1) in United States v. Salerno, 505 U.S. 317, 321 (1992). For their grand jury testimony to qualify under this exception, the witness must be unavailable to testify at trial under Federal Rule of Evidence 804(a). Rule 804(b)(1) excludes from the rule against hearsay testimony that:
- was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
- is now offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
Since, as previously mentioned, grand jury hearings are ex parte, the government would never be able to admit grand jury testimony under this rule, even absent any Confrontation Clause concerns, because the defendant will never have had an “opportunity” to develop the witness’s testimony. The defendant may be able to admit it under this exception because the government will always have had an opportunity to develop the witness’s testimony. The critical inquiry then is whether the government had a “similar motive” to develop the testimony at the first proceeding as it would at trial within the meaning of Rule 804(b)(1).
In Salerno, the Supreme Court explicitly withheld judgment on the meaning of “similar motive” under Rule 804(b)(1). See Salerno, 505 U.S. at 325 (“Rather than to address this issue here in the first instance, we think it prudent to remand the case for further consideration.”). Since that decision, the circuit courts have been split on the proper interpretation of similar motive. As the Ninth Circuit explained in United States v. McFall, 558 F.3d 951, 962 (9th Cir. 2009), some circuits, including the D.C. Circuit, analyze similar motive “at a high level of generality.” These circuits ask whether the testimony at the grand jury proceeding “was to be directed to the same issue” as at trial, the defendant’s “guilt or innocence.” Id. (quoting United States v. Miller, 904 F.2d 65, 68 (D.C. Cir. 1990)). The Sixth Circuit uses a similar approach. Id. Other circuits, including the First and Second Circuits, compare the motives “at a fine-grained level of particularity.” Id. For instance, the Second Circuit asks “whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue.” United States v. DiNapoli, 8 F.3d 909, 914–15 (2d Cir. 1993) (en banc) (emphasis added). The Ninth Circuit, in McFall, chose to adopt the more general approach used by the D.C. and Sixth Circuits. McFall, 558 F.3d at 963.
Until the Supreme Court rules on the proper interpretation of similar motive, parties should be cognizant of which circuit they are litigating in when trying to admit grand jury testimony at trial under Rule 804(b)(1). It will be easier to admit grand jury testimony under this exception in the jurisdictions that have adopted the more general interpretation of “similar motive.”
Declarations Against Interest
Another way to admit grand jury testimony at trial is as a statement against interest under Federal Rule of Evidence 804(b)(3). Like the former testimony exception, this rule requires that the witness be unavailable to testify at trial. See Fed. R. Evid. 804(a). Rule 804(b)(3) excludes from the rule against hearsay any statement that:
- a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
- is supported by corroborating circumstances that clearly indicate its trustworthiness if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
As the Supreme Court has explained: “The question under Rule 804(b)(3) is always whether the statement was sufficiently against the declarant’s penal interest . . . and this question can only be answered in light of all the surrounding circumstances.” Williamson v. United States, 512 U.S. 594, 603–04 (1994). “[W]hether a statement is self-inculpatory or not can only be determined by viewing it in context.” Id. at 603. In other words, it is a “fact-intensive inquiry,” turning on the particular circumstances in each case. Id. at 604.
Although it concerned testimony in a change of plea hearing and not a grand jury, United States v. Nagib, 56 F.3d 798 (7th Cir. 1995), provides a good example of how grand jury testimony could be admitted under this rule. At the hearing, the witness, a co-defendant, testified to shipping LSD “with the intent of delivering [it] to a Jerry Garcia concert.” Id. at 802. He further testified that he, and not the defendant, was going to pick up the LSD at its destination. Id. at 803. The court found that the co-defendant “clearly indicated his involvement in a conspiracy and the likelihood of a managerial or supervisory role,” and thus that the statements were sufficiently against his penal interest. Id. at 805. The court also found “sufficient indicia of reliability to justify admission under Rule 804(b)(3)” because the co-defendant did not “attempt[] to curry favor with the authorities” through his statements. Id. Because the statements were against the witness’s penal interest and were supported by corroborating circumstances, the Seventh Circuit ruled that the evidence should have been admitted as statements against the witness’s penal interest. Id.
Importantly, under this exception, only parts of the statements that “subject the declarant to criminal liability” will be admitted. United States v. Nagib, 56 F.3d 798, 804 (7th Cir. 1995). Rule 804(b)(3) “does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory.” Williamson, 512 U.S. at 600–01. Accordingly, this exception will only be useful if a witness is inculpating themselves and exculpating a defendant in the same breath, like in Nagib.
Residual Exception
Another way to admit grand jury testimony at trial and, probably an argument that should always be raised when trying to admit grand jury testimony, is the residual exception to the rule against hearsay, Federal Rule of Evidence 807 (formerly 803(24) and 804(b)(5)). Rule 807 provides that a hearsay statement may be admitted if:
- the statement is supported by sufficient guarantees of trustworthiness–after considering the totality of the circumstances under which it was made and evidence, if any, corroborating the statement; and
- it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.
Rule 807(b) also requires “reasonable notice” to the opposing party by the party seeking to admit the statement. Moreover, “Congress intended the residual hearsay exception to be used very rarely and only in exceptional circumstances.” Rivers v. United States, 777 F.3d 1306, 1312 (11th Cir. 2015). However, exculpatory grand jury testimony can qualify as exceptional circumstances. The residual exception can also be a better way to admit grand jury testimony in jurisdictions that utilize one of the more stringent “similar motive” tests, discussed supra.
The residual exception can be a viable option for admitting grand jury testimony, especially if the witness invokes a privilege at trial and is unable to testify. That the testimony is given at a grand jury proceeding, under oath, gives it credence for much of the same reasons that former testimony is an exception to the hearsay rule. “An oath alone, however, is an inadequate safeguard to meet the requirement of Rule [807] that the statement have ‘equivalent circumstantial guarantees of trustworthiness’. . . .” United States v. Fernandez, 892 F.2d 976, 981 (11th Cir. 1989). So, typically, just that the testimony was given under oath is not enough to alone make the testimony trustworthy under Rule 807, “otherwise, Congress could have dispensed with the cross-examination requirement codified in Rule 804(b)(1).” Id.
In United States v. Foster, 128 F.3d 949, 956 n.8 (6th Cir. 1997), although the court admitted the exculpatory grand jury testimony under the former testimony exception, Rule 804(b)(1), the court noted that there was “a strong possibility that [the witness’s] testimony could have been admitted under Rule [807] as well.” The Court explained:
In this case, the fact that (1) the testimony was based on personal knowledge, (2) [the witness] had been granted immunity for his testimony and (3) [the witness] had repeatedly been warned about the consequences of perjury are all factors which support a finding that [the witness] was telling the truth during his grand jury proceedings.
Id. (citations omitted). So, while the residual exception was not needed in Foster, the court emphasized that it was an alternative route to admit the witness’s exculpatory grand jury testimony. Cf. United States v. Omar, 104 F.3d 519, 524 (1st Cir. 1997) (“In this case, the defendants did not invoke [the residual] exception, probably believing that they could not show that [the witness’s] self-serving denials were trustworthy.”).
Before the Supreme Court’s decision in Crawford, the residual exception was often used by the government to admit grand jury testimony. See, e.g., United States v. Clarke, 2 F.3d 81, 83–84 (4th Cir. 1993) (citing a number of decisions in which the government used the residual exception to admit grand jury testimony at trial). Since Crawford, the government’s use of the residual exception to admit grand jury testimony has all but ceased. However, Rule 807 is still a viable option for criminal defendants to admit exculpatory grand jury testimony at trial.
In sum, when trying to admit grand jury testimony at trial, it is best to argue as many of these exceptions as possible. Importantly, this is a non-exhaustive list, but simply provides the most common ways through which grand jury testimony can be admitted at trial. Which exceptions work in a particular case will be context-dependent, but grand jury testimony can often be admitted under at least one of these exceptions.
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