The third choice would be to provide a copy of the Tecott testimony in full at that point when the United States rests. There is usually a set of motions made at that point, which would allow time to read and evaluate the transcript in the context of the evidence adduced by the United States on its direct case, and which may include proofs, through other witnesses and exhibits, of Tecott's role (if any) in the transactions underlying the indictment.
Of these choices, the second one appears most likely to satisfy the competing interests in a balanced way, while providing defendants with the closest substitute for a subpoenaed Tecott. An order to that end will be entered.
Several other facets are obviously involved and the attention of counsel called to them. These are enumerated as follows:
1. If any part of the Tecott testimony is introduced, it should be done by reading the questions and answers to the jury, rather than by allowing the transcript to enter the jury room as an exhibit. Tecott's unavailability makes it impossible for the jury to observe his demeanor, on the one hand, and allowing the transcript to go in to the jury room could give the written word more weight or impact (but without the benefit of demeanor observation) than would be the case if he testified before the jury. A plain reading of questions and answers received, which would be done by the court, strikes the most neutral balance between these factors.
2. The court sees no way in which the United States can offer Tecott's testimony as part of its direct case. It does not meet the conditions of the only conceivable rule, Fed.Ev.Rule 801(d)(1), mainly because if offered by the United States the defendants would be deprived of the right of confrontation.
3. If any part of the Tecott testimony is offered and received, as part of the defense case, it may be that the United States would be entitled to require that other parts be offered as well, under Fed.Ev.Rule 106.
4. Since one or another part of the Tecott testimony may tend to exculpate himself, or otherwise may raise a doubt on some part of the evidence for the United States, Tecott's credibility may be open to attack (and if attacked, to support), under Fed.Ev.Rule 806.
5. During the argument of various motions in this case, there has been reference to the fact that one or two civil lawsuits have been pending in the Superior Court of New Jersey, in the course of which depositions of Tecott may have been taken. This opinion expresses no view on the question whether any of the Tecott deposition testimony may be offered by any party. The ruling here is confined to the question of access to Tecott's testimony at the Grand Jury stage of this proceeding.
Finally, it should be observed that the court has found no authority to indicate, one way or the other, whether the Grand Jury testimony of a deceased witness before that body (which named the deceased witness as an unindicted co-conspirator) is within the scope of the meaning of the expression: "Testimony given as a witness at another hearing of the same or a different proceeding . . .", Fed.Ev.Rule 804(b)(1).
Neither the Advisory Committee Notes, nor the House Report (No. 93-650), nor the Senate Report (No. 93-1277), nor the Conference Report (No. 93-1597) to what became P.L. 93-595, addresses this question. Certainly, the expression embraces testimony at a prior trial. Certainly, it embraces depositions taken in criminal cases, see F.R.Crim.P. 15, and 18 U.S.C. § 3503. Whether or not the expression embraces testimony before a Grand Jury during the investigation stage eventually leading to indictment is by no means clear.
Despite this doubt, the court has arrived at its conclusion largely to assure that the defendants' constitutional right to the compulsory process of the court be realized to the extent it can be in the circumstances of this case.
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