Constitutional Constraints on the Admissibility of Grand Jury Testimony: The Unavailable Witness, Confrontation, and Due Process

Defendants, however, have raised serious constitutional objections to the introduction of grand jury testimony when the witness is unavailable to testify at trial. These claims have focused on the confrontation clause of the sixth amendment and the due process clauses of the fifth and fourteenth amendments. Defendants have contended that the introduction of testimony from a grand jury proceeding which cannot be subjected to cross-examination fatally compromises the defendant’s right to a fair trial. Lower courts are split over admitting grand jury testimony in these circumstances, and the Supreme Court has yet to rule on the issue. As a result, trial judges are left with little guidance as they grapple with evidentiary disputes amidst the pressures of criminal prosecutions. This Note argues that the confrontation clause normally bars grand jury testimony, but that it may be admissible when a defendant has waived his confrontation rights and an independent standard of due process is satisfied. Part I discusses the framework for confrontation analysis established by the Supreme Court in the context of preliminary hearings and applies it to the grand jury setting. This section concludes that grand jury testimony does not meet the Court’s test for reliability and therefore should not, as a general matter, be admissible at a later trial. Part II goes beyond the issue of confrontation and examines the additional considerations important for due process analysis if a defendant waives the right to confront.