439 U.S. 936 (1978)

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U.S. Supreme Court

MCKETHAN v. U.S , 439 U.S. 936 (1978)

439 U.S. 936

Everett C. McKETHAN
No. 77-1545

No. 77-1557

Supreme Court of the United States

October 30, 1978

On petitions for writs of certiorari to United States Court of Appeals for the Fourth Circuit.

The petitions for writs of certiorari are denied.

Mr. Justice STEWART, with whom Mr. Justice MARSHALL joins, dissenting.

These petitioners contend that the admission into evidence at their trial of the grand jury testimony of an unavailable witness violated both the Federal Rules of Evidence and the Sixth Amendment. The Courts of Appeals have differed as to the admissibility of such evidence in similar cases. I would grant certiorari to resolve these questions. [Footnote 1]

Page 439 U.S. 936 , 937

The petitioners were convicted of conspiracy and substantive offenses stemming from their alleged importation of heroin. An alleged accomplice named Robinson was allowed to plead guilty to two lesser offenses in return for his testimony against the petitioners before a grand jury. The prosecution intended to rely heavily on Robinson's testimony at the petitioners' trial. Before the trial, however, Robinson stated that he would not testify. Although the court granted Robinson use immunity, he persisted in his refusal to testify. Over the petitioners' objections, the trial judge then admitted the transcript of Robinson's grand jury testimony under Fed.Rule Evid. Rule 804(b)(5).2 After this transcript was read to the trial jury, Robinson did take the witness stand . He stated that he knew the petitioners and that his grand jury testimony had been false. The Court of Appeals characterized his comments as

"giv[ing] one the general impression not that the grand jury testimony was false but that, whatever pressures were brought upon him, [he] was unwilling to testify, [439 U.S. 936 , 938]

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