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Published : September 08, 2016 | Author : PRASHANTI UPADHYAY
Category : Criminal law | Total Views : 243 | Unrated

Pashanti Upadhyay pursuing LL.M. from Law College Dehradun Uttaranchal University

How a Defendant’s Grand Jury Testimony Can Be Used at Trial

Anything that a defendant says has the potential to be used against him or her in a criminal trial. This includes the testimony that he or she provides during grand jury testimony. The criminal defense lawyer representing the defendant should remain cognizant of this possibility and take proactive steps to protect the defendant’s legal rights.

Grand Jury Testimony

A grand jury of 16 to 23 members may be convened when the public interest requires it, according to the Federal Rules of Criminal Procedure. The court is required to order enough legally-qualified individuals to appear for this purpose in order to abide by the requirement. At the grand jury proceeding, only certain individuals may be present. These individuals are usually sworn to secrecy and not allowed to repeat anything that was stated during the proceeding. The defendant may be called to testify at the grand jury. His or her statements may be recorded by a court recorder.

The role of the grand jury is to determine if there is reasonable cause to believe that a crime was committed and the defendant in question committed it. This is a low threshold of proof in comparison to the beyond a reasonable doubt standard that must be met before an individual can be convicted of the crime for which he or she is charged. If the grand jury hands down an indictment, the criminal case continued. If there is no indictment, the charges are usually dismissed against the defendant. The district attorney is largely responsible for the convening of the grand jury and the presentation of evidence before it.

Rules of Evidence

801(d)(1)(A) of the Federal Rules of Evidence excludes grand jury testimony from being considered hearsay in some situations. For example, it is not considered hearsay when the testimony of a witness given before a grand jury is inconsistent with a statement that is later made. Additionally, the 8th Circuit has held that grand jury testimony can be admitted as evidence if a witness later refuses to testify because he or she was threatened by the defendant.

State law may also permit the use of grand jury testimony to be used in the following circumstances:

Party Admission

The use of grand jury testimony may be introduced as evidence and can fall outside the hearsay rule if the statement in question was an admission by a party that was voluntarily made. Since the defendant does not have to testify at the grand jury hearing, any statements he or she voluntarily makes may result in the testimony being admitted into evidence as an admission even if this testimony results in exculpatory statements. Usually, the defendant is advised during a grand jury proceeding of his or her rights and that any statements that he or she makes are voluntarily made. The defendant may even sign a form indicating his or her understanding of this information.

Witness Is Unavailable

In some cases, a defendant’s grand jury testimony or that of another witness may be admitted into evidence if the witness is not available at the time of trial. Unavailable usually means that the witness cannot testify because of death, illness or incapacity. However, it can sometimes mean that the witness cannot be found or is outside the jurisdictional limitations.


When a witness’ statement would otherwise be inadmissible due to the hearsay rule, the prosecutor or defendant’s lawyer may be able to get such information in through impeachment rather than through the direct case against the defendant. This may occur when a witness lies about a statement and the previous statement is brought in to contradict the statement made in court.

Legal Strategy

Individuals who believe that they will be brought before a grand jury may wish to contact a criminal defense lawyer. He or she can advise the defendant on his or her rights. He or she may recommend that the defendant assert his or her rights provided under the Fifth Amendment of the United States Constitution. However, in some cases, he or she may advise the defendant to talk during the grand jury proceeding to clear up any confusion if he or she believes this tactic can result in dismissal of the criminal charges. Each case is different, so it is important that the defendant have a clear understanding of his or her rights, the risks involved in making a decision of this importance and the ways that witness testimony may later be used, if applicable.

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