Opinion
C3-01-15
June 20, 2002
MEMORANDUM AND ORDER
I. Introduction
Before the Court is a motion by the government to admit into evidence at trial the grand jury testimony of the alleged victim in this case, her diary, and notes taken by investigators who interviewed her (doc. #'s 93, 95). Defendant resists the motion; he also moves to dismiss the indictment for violation of the Speedy Trial Act (doc. #99). A videoconference on these motions was held June 19, 2002, at which all counsel and defendant were present. As explained below, both motions are DENIED.
II. Motion to admit grand jury testimony, diary and notes
The alleged victim in this case, Norma Jerdee, died on March 25, 2002. Therefore, the government seeks to admit into evidence a transcript of her testimony before the grand jury which indicted defendant. The government urges that this testimony is admissible under Federal Rule of Evidence 807, the so-called residual exception to the hearsay rule, which allows evidence which would otherwise be excluded on the grounds of hearsay to be admitted if it is not specifically covered by Rule 803 or 804 but [has] equivalent circumstantial guarantees of trustworthiness. Under Rule 807, the government also must show that the evidence is offered as evidence of a material fact and is more probative on the point than any other reasonably attainable evidence. As both parties recognize, the Eighth Circuit has expressly held that Rule 807 is the proper vehicle for analyzing claims such as the government presents here. See United States v. Earles, 113 F.3d 796, 800 (8th Cir. 1997) (discussing grand jury testimony and holding that if a statement is inadmissible under a prior hearsay exception, the statement may nonetheless be considered for admission under [Rule 807]).
Of course, such evidence runs afoul not only of the hearsay rules but also implicates the Confrontation Clause of the Sixth Amendment of the Constitution, as the defendant is obviously unable to confront the witness against him. Therefore, the government not only must satisfy the requirements of Rule 807 but also must satisfy the Confrontation Clause. Summarizing the Supreme Court's requirements for such evidence into one rule, one court has explained: [H]earsay from an unavailable declarant can be admitted in a criminal trial, satisfying both the Federal Rules of Evidence and the Confrontation Clause, when the statement falls within a firmly-rooted hearsay exception or when it is supported by particularized guarantees of trustworthiness. See Curro v. United States, 4 F.3d 436, 437 (6th Cir. 1993) (citing Ohio v. Roberts, 448 U.S. 56, 66 (1980)). These guarantees are to be sought from the totality of circumstances be drawn from the totality of the circumstances that surround the making of the statement and that render the declarant particularly worthy of belief." Idaho v. Wright, 497 U.S. 805, 820 (1990).
It is these particularized guarantees of trustworthiness, also referred to as indicia of reliability, that are the main point of contention here. There is little debate as to the other issues: Ms. Jerdee is obviously unavailable as a witness; her testimony covers facts which are clearly material; her testimony would surely be more probative on the point of what the defendant said to her than any other witness; and the government has complied with the notice requirements of Rule 807. The key issue then is whether the testimony contains the requisite indicia of reliability to permit its admission despite the hearsay and Confrontation Clause violations. See Earles, 113 F.3d at 800.
As proof of the statements reliability, the government urges that Ms. Jerdee gave the testimony in the solemn setting of the grand jury, under oath and the danger of perjury; that her testimony was similar to the information she provided police and investigators; that she never recanted the testimony; and that she had a reputation for honesty and integrity. Defendant urges, contrarily, that the testimony is not sufficiently reliable since it was never subject to cross-examination and as Ms. Jerdee was in failing physical and mental health at the time. Upon full review of the case, the Court concludes the testimony lacks the indicia of reliability required for admission.
First, while the Court agrees that giving grand jury testimony is a solemn act with grave implications, it is clear that being under oath is insufficient in itself to provide indicia of reliability. See United States v. Deeb, 13 F.3d 1532, 1538 (11th Cir. 1994) ([T]he mere fact that a statement is made under oath is not enough to guarantee its trustworthiness). Second, the fact that her testimony is similar to that which she gave the police is of no value in this analysis; the Supreme Court has expressly rejected its use for this purpose:
[T]he use of corroborating evidence to support a hearsay statement's "particularized guarantees of trustworthiness" would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial, a result we think at odds with the requirement that hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross-examination of the declarant would be of marginal utility.
Idaho , 497 U.S. at 806. Further, this would simply base one kind of hearsay on another, surely an impermissible result. Therefore, the Court will not consider the fact that Ms. Jerdee's testimony may be corroborated by other evidence. Id.
The Court agrees that the facts Ms. Jerdee never recanted her testimony and that she had a good reputation provide some measure of reliability. However, this is not enough to overcome several other considerations. First, Ms. Jerdee was quite elderly and appears from the record before the Court to have had some trouble remembering the events at issue, certainly in detail. Though there is some dispute as to the details of her memory loss, the Court concludes that there is at least a real concern about this issue. Courts have considered this fact when deciding that statements lacked the required indicia of reliability. See Sherley v. Seabold, 929 F.2d 272, 274-75 (6th Cir. 1991).
Further, there was of course no cross examination, which would have provided further indicia of reliability. See, e.g., Deeb, 13 F.3d at 1539 (discussing importance of cross examination). Of equal importance is that there could be no cross examination of Ms. Jerdee at trial. This means that the jury would have no opportunity to draw conclusions about her credibility informed by cross examination, especially on the subject of her mental ability to remember the facts at issue. In short, the jury would simply be unable to assess properly her testimony and credibility. This fact is of special consequence here, given that Ms. Jerdee is the primary victim in the case, surely the type of witness defendant is entitled to confront. This seriously undercut the government's theory that the statements contain sufficient indicia of reliability to be admitted over defendant's constitutionally-protected right to confront the witnesses against him.
Finally, the Court notes its concern that steps were not taken to preserve Ms. Jerdee's testimony. The government has known of this case for several years; it appears that it originally came to light in 1999, and the indictment is dated March 2000. For all of this time, Ms. Jerdee's health has been an issue; indeed, it was one reason proffered to justify an Alford plea (which the Court ultimately rejected). Despite this, the government made no effort under Rule 15 to take Ms. Jerdee's deposition for use at trial. Courts have sanctioned this procedure for unhealthy witnesses, see generally United States v. Campbell, 845 F.2d 1374 (6th Cir. 1988), and the Court would likely have allowed it here. While perhaps not strictly relevant to the foregoing analysis, the Court is troubled that the government would not have attempted to preserve this testimony.
In short, the Court finds that the grand jury testimony is prohibited by the hearsay rules and the Confrontation Clause. Therefore, the government will not be permitted to present this testimony at trial. Further, the government's request to admit the notes of investigators who interviewed Ms. Jerdee fails for essentially the same reasons. See United States v. Trujilo, 136 F.3d 1388, 1395-96 (10th Cir. 1998) (analyzing effort to admit notes of statements by unavailable witnesses under the same rules as those above).
Essentially, to the extent these notes memorialize conversations, they are no more admissible than oral testimony on the contents of the conversations would be. Id. Generally speaking, this sort of testimony would be precluded as hearsay and as violative of the Confrontation Clause, and the Court does not now find it possesses the indicia of reliability required to overcome these concerns. This is based on the same reasons set forth above; indeed, the case is even weaker here, since Ms. Jerdee would have had an incentive, as an alleged victim reporting a crime, to emphasize the most egregious aspects of the events, and because she was not under oath.
Finally, the Court also rejects the government's effort to admit portions of Ms. Jerdee's diary. To the extent admission is urged pursuant to Rule 807, the foregoing analysis applies with equal force. The government has not urged its admission under other rules, so the Court will not address this matter further. Therefore, the diary must also be excluded as violating the hearsay rule and the Confrontation Clause.
In conclusion, the government's motion to admit Ms. Jerdee's grand jury testimony, her diary, and the notes of the investigators who interviewed her is DENIED (doc. #'s 93, 95).
III. Motion to dismiss for Speedy Trial violations
Defendant urges the Speedy Trial Act requires dismissal of the indictment because the speedy trial clock has run. He argues that this is so even taking into account the Court's earlier orders excluding various periods of time from the calculation of time. The Court has considered this argument and has done lengthy speedy trial calculations of its own. Upon review of these matters, the Court concludes that the motion must be DENIED.
First, defendant's theory assumes that the Speedy Trial clock began to run at the March 15, 2002 hearing. The Court disagrees. While the Court did set the case for trial that day, review of the transcript makes it apparent that the parties intended to continue to work on a plea agreement. This in fact came to pass; indeed, the parties had a conference with the Court nearly a month later, on April 22, 2002, to propose a binding plea agreement, which the Court also rejected.
Further, at that conference, the parties discussed needing a continuance of the trial date and the Court indicated it would allow this continuance but would set the trial before July 1, 2002. This corresponded with the Court's own statements at the hearing that it would remain flexible on the trial date because a plea was anticipated and because the government's witnesses might be physically unavailable. While the Court set a trial date, then, all parties knew this date was tentative and no one anticipated that it would be used. It was not until May 2, 2002, that the Court received from defense counsel a letter affirmatively requesting a trial date and indicating that attempts to reach a plea had failed. Therefore, the Court holds that the Speedy Trial clock, which stopped on October 29, 2001, did not restart until May 2, 2002, when it received this letter from defense counsel.
Second, defendant's calculations fail to exclude time under 18 U.S.C. § 3161(h)(1)(F), which provides for exclusion of the time during which the Court considered the many pretrial motions filed by the parties in this case. According to the Court's calculations, exclusion of this time, when combined with the time already excluded by order and when employed with the dates set forth above, requires a trial date of no later than June 24, 2002. Fortuitously, June 24 is when trial is scheduled to begin. Therefore, there is no speedy trial violation, and defendant's motion is therefore DENIED (doc. #99).
IV. Conclusion
In conclusion, the government's motion to admit grand jury testimony of the alleged victim, her diary, and notes taken by investigators who interviewed her is DENIED (doc. #'s 93, 95). Defendant's motion to dismiss is also DENIED (doc. #99).