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UNITED STATES v. DRISCOLL

February 9, 1978

UNITED STATES of America
v.
C. Norman DRISCOLL et al.



The opinion of the court was delivered by: BIUNNO

 In this criminal case, the Grand Jury heard testimony of Mr. Tecott in the course of its investigation. Before the indictment was returned, Mr. Tecott died. The indictment names three individuals as defendants, and charges them with conspiring with each other and with Mr. Tecott. Of course, Tecott could not be indicted as a defendant to be tried because he had meanwhile died.

 The three named defendants have moved for access to a copy of Mr. Tecott's testimony before the Grand Jury. The court directed the United States to furnish a copy of that transcript for inspection in camera, under seal.

 If Tecott's testimony contains Brady material, it must be provided under the standard discovery order routinely entered in this District at arraignment as a tool for meeting the ever decreasing time scales of the Speedy Trial Act.

 Aside from that, there is a further question whether defendants are entitled to the Tecott Grand Jury testimony as a means of achieving the right to the compulsory process of this court under U.S.Const., Amend. 6.

 There can be no doubt that, were Tecott alive, any of the defendants would be entitled to have him testify as a witness and, were he unwilling to do so, to have the benefit of the compulsory process of the Court, by subpoena under F.R.Crim.P. 17, to have him appear and testify at trial.

 This undoubted right cannot be exercised de jure because Tecott has died. However, having testified before the Grand Jury that returned the indictment, Tecott is a "declarant", as defined by Fed.Ev.Rule 801(b), he is unable to be present or to testify at the hearing because of his death, and so is "unavailable", as defined by Fed.Ev.Rule 804(a)(4).

 For these reasons, his former testimony before the Grand Jury becomes potentially admissible evidence, as an exception to the hearsay rule, under Fed.Ev.Rule 804(b)(1).

 Whether the testimony can be received at trial is a decision that must await trial; no advisory opinion on that score is within this court's jurisdiction. However, the potential is there.

 The Grand Jury testimony of Tecott is "testimony given as a witness at another hearing of the same . . . proceeding". And the United States is a "party against whom the testimony is now offered", and "had an opportunity and similar motive to develop the testimony by direct . . . examination," thus satisfying, evidently, the conditions of Fed.Ev.Rule 804(b)(1).

 The United States has furnished the Tecott testimony to the court for in camera inspection. From that inspection the court is wholly unable to come to any conclusion on the question whether the Tecott testimony tends to inculpate or exculpate the defendants on trial. It is a fragment of factual background which, by itself, and read in the light of the charges in the indictment, is ambiguous at best. Some segments may tend to inculpate the defendants on trial, and others may tend to exculpate Tecott. The court cannot say that it is Brady material in this case.

 Despite this, it is clear that if defendants are to enjoy their 6th Amendment right to compulsory process they should have the opportunity to offer the Tecott testimony as a de facto substitute for Tecott himself. Technically, the defendants ought to be in the same position they would be if Tecott were alive and declined to be interviewed or to testify. In that case, a professional decision would need to be made whether to have a subpoena issued to him. Under those conditions, defense counsel would not know what his testimony would be until he were on the stand and had questions put to him. Thus, one choice is to rule that they may have the opportunity to offer the Tecott testimony at trial, sight unseen, and be bound by its content.

 Another choice would be to provide defendants, before trial, with a copy of the questions asked, but not with the answers. This would provide some opportunity to evaluate the scope of the transcript, and to select those questions which they wish to ask, in which case the answer would be put in evidence (unless some objection to the question be sustained). This would put the defendants in the same position they would be in if Tecott were alive, were unwilling to be interviewed in advance, were subpoenaed, sworn and asked the questions selected, one by one.


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