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