2) the manner in which the statement was recorded or memorialized;
3) any pressures, physical or psychological, which were exerted upon the witness which might affect his motive to lie or tell the truth;
4) the opportunity, if any, to cross-examine or otherwise test the reliability of the witness;
5) the character of the witness for truthfulness and honesty and the availability of evidence on the issue;
6) the indicia of reliability of the statement by corroboration or other factors outside of the statement itself;
7) how necessary the statement is to the prosecution and how incriminating it is to the defendant; and
8) whether either party caused or procured the unavailability of the witness.
Where, as in this case, the indicia of reliability are suspect, and where there is little substantive information upon which the jury can assess Rodriguez's credibility, there is no foundation warranting an exception to a right as fundamental as the right to cross-examine.
Particularly where, as here, the outcome of the trial will depend to a great extent on the contest between Vigoa's credibility and that of Rodriguez, and where a critical witness, Felix Laboy, has now directly challenged the veracity of Rodriguez's testimony, the inability to cross-examine Rodriguez creates such prejudice as to require its exclusion. Rodriguez's scant testimony has never been probed in any rigorous, truth-seeking manner. To deny defendants the opportunity to conduct such a probe creates gross unfairness, particularly where Rodriguez's testimony is the only significant evidence which exists to incriminate Vigoa.
Considering the substance of Rodriguez's testimony, it would be enormously prejudicial to admit such evidence without granting defendants the opportunity to cross-exam.
For all the reasons set forth above, the government's motion is denied.
This matter having originally been opened to the court upon the government's application to admit the grand jury testimony of Orestes Rodriguez, a recently deceased government witness; and the court having denied the government's motion as violative of both the Federal Rules of Evidence and the Confrontation Clause by Order, filed February 20, 1987 and Opinion filed March 6, 1987, and the government now having moved for reconsideration of the court's Order and the court having heard oral argument on the motion and having considered the additional submissions, for good cause showing,
IT IS this 27 day of March, 1987 hereby
ORDERED that the court's Order filed February 20, 1987 and Opinion filed March 6, 1987 be and hereby are, vacated and it is further
ORDERED that the government's motion seeking admission of the grand jury testimony is denied for the reasons set forth in the accompanying Amended Opinion filed this day.