After informant claimed memory loss during trial concerning incriminating statements the defendant made to him, the informant’s prior inconsistent sworn grand jury testimony was admissible as substantive evidence, in United States v. Mayberry, 540 F.3d 506 (6th Cir. Aug. 21, 2008) (Nos. 06-2239, 06-2413)
Can memory loss be sufficient to allow a prior sworn inconsistent statement to be admitted? The Sixth Circuit answers this question affirmatively.
An informant reported to police that two individuals were responsible for two recent grocery store robberies. The informant cooperated and assisted in meeting with the defendants. After the defendants were charged as felons in possession of a firearm, the informant testified at trial. He claimed he could not remember incriminating statements made by one of the defendants concerning the the grocery store robberies. The government then introduced statements the informant made before the grand jury as prior inconsistent statements under FRE 801(d)(1)(A). Defendant Peoples was convicted by the jury.
The circuit concluded the informant’s memory loss at trial was sufficient to establish an inconsistency with the grand jury testimony, and the grand jury statements were admitted as substantive evidence. The requirements of FRE 801(d)(1)(A) for a prior consistent statement were satisfied: The informant “testified to a grand jury regarding incriminating statements made by [defendant] Peoples. These statements were made under oath. Later, he testified at Peoples’ trial, claimed a loss of memory, and was later available for cross-examination by Peoples’ counsel.” Mayberry, 540 F.3d at 516. The circuit also found there was no Confrontation Clause violation since the informant testified at trial and was subject to cross-examination.
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