Can a federal prosecutor use a summary witness—a federal agent—instead of calling the person who really witnesses what happened?

Can the D.A. choose not to bring a key witness to a Grand Jury hearing and use a summary witness instead? For example, a D.E.A. agent gave a "testimony summary" of a witness he interviewed rather than bring the witness in to testify personally.

The problem that I have with that particular situation is that the D.E.A. agent admitted to the grand jury that he did not videotape or audiotape the witness, nor did he document anything while interviewing this witness. So how accurate can his summary be with no documentation? Especially when they are promoting this witness as the key witness for the prosecution! That doesn't seem ethical or proper to do in a grand jury hearing. Does the law allow them to let someone summarize like that?

Response:

I want to answer your question, but since I gather that you are serving on a federal grand jury, I want to do so without impermissibly interjecting myself into the grand jury process . . . which might get me, and you, into trouble. My goal is to provide you with information as to the permissibility of a federal prosecutor's using a summary witness (who is usually a federal agent) in front of a grand jury, rather than bringing in "civilian," fact witnesses. I shall try very hard not to express my own opinions about the propriety of doing so - if you have any questions about that, I would suggest you take them up with the prosecutor who presented the D.E.A. agent and/or with your foreperson.

In Costello v. U.S., 350 U.S. 359, 361 (1956), the U.S. Supreme Court held that an indictment could be based on hearsay testimony . . . and hearsay, of course, is what you have when a federal agent summarizes his/her interview with a witness who has first-hand knowledge of facts relevant to a grand jury's inquiry. Some lower federal courts, and the U.S. Department of Justice in its manual for federal prosecutors, have concluded that grand jurors should not be misled into believing that an agent witness is providing a first-hand account of events when he/she is actually reciting hearsay. These sources have said that to ensure the grand jurors are not misled in this fashion, the prosecutor presenting such a witness should instruct the grand jurors that the agent's testimony is hearsay and should explain what hearsay is. The prosecutor should also tell the grand jurors that they have the right to hear testimony from witnesses who do have first-hand knowledge of the events in question, and the prosecutor should explain that the government will endeavor to secure the testimony of those persons if that is the grand jurors' desire. Brenner & Lockhart, Federal Grand Jury Practice section 10.6 (1996); U.S. Department of Justice, Federal Grand Jury Practice 73 (1993); U.S. v. Torres, 1994 WL 48820 (S.D.N.Y. 1994).

I hope that is helpful. I included the reference to the grand jury book and the other sources, on the off chance they might prove helpful.

Good luck.

SWB

2002