Seventh Circuit Finds Forgetful Witness’ Grand Jury Testimony Properly Admitted Against Defendant

Federal Rule of Evidence 801(d)(1)(A) provides an exclusion to the rule against hearsay when

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.

It is also well established from United States v. Owens, 484 U.S. 554 (1988), that a declarant with partial memory loss about an event is still “subject to cross-examination about a prior statement.” But what about a declarant with complete memory loss about an event? That was the question addressed by the Seventh Circuit in its opinion today in United States v.. Shaffers, 2022 WL 39389 (7th Cir. 2022).

In Shaffers, 

Ramone Shaffers was charged with possession of a firearm by a convicted felon after a gun was recovered from his car during an encounter with Chicago police. At his first trial, the jury deadlocked and the district court declared a mistrial. Shaffers was then tried again, with an obstruction of justice count added based on his attempts to influence witness testimony before the first trial. He was convicted on both counts.

After he was convicted, Shaffers appealed, claiming that the court improperly allowed for the admission of grand jury testimony by Talieta Fulton.

Fulton was in the passenger’s seat of Shaffers’ car on the night of October 15, 2016. After Shaffers fled and Officer Streeper discovered the gun, Fulton and the other two passengers were arrested and taken to the police station. They were eventually released without being charged.

In May 2017, Fulton appeared before a federal grand jury. She testified that she had not known there was a gun in the car that night, that she had seen the police remove the gun from under the driver’s seat, and that the gun was not hers. Shaffers was then arrested and charged in June 2017.

Almost two years later, during Shaffers’ first trial, Fulton testified that she had no memory of the events of October 15. She also said she did not recall her testimony before the grand jury, although she vaguely remembered the government’s flying her to Chicago. Over the defense’s objection, the district court allowed the government to introduce Fulton’s grand jury testimony as a prior inconsistent statement under Federal Rule of Evidence 801(d)(1)(A). Before the testimony was read, Shaffers’ counsel cross-examined Fulton, asking whether her lack of memory was caused by a medical condition or a fear of prosecution. He also asked about her prior criminal history. An ATF agent then read Fulton’s grand jury testimony aloud.

A similar process played out in Shaffers’ second trial.

In rejecting his appeal, the Seventh Circuit held that

Shaffers’ attempts to distinguish Owens are not persuasive. He notes that the witness there suffered only partial memory loss, as he was able to testify about parts of the attack and about the interview where he identified Owens….But we rejected that distinction in United States v. Keeter, 130 F.3d 297 (7th Cir. 1997), where a witness’s grand jury testimony incriminated one of the defendants. At trial, that witness claimed that he did not remember any of the underlying events or his appearance before the grand jury….The defendant argued on appeal that his case was different from Owens because the witness could not even remember making the identification. We concluded that the difference was immaterial, holding that the Confrontation Clause is satisfied “when the witness must look the accused in the eye in court; shortcomings in the declarant’s memory may be made known to the jury.”

-CM