RIGHT TO HAVE WITNESS’ GRAND JURY TESTIMONY TRANSCRIBED
The need for an accurate record of what the witness actually said before the grand jury is highlighted by the increasing number of prosecutions for perjury based upon grand jury testimony. The immunity statute [18 U.S.C. § 6002], expressly excepts perjury and false statements from its protection, and 18 U.S.C. § 1623(c) allows a mere showing that two declarations are inconsistent to the degree that one of them is necessarily false, in order to support a perjury conviction without any necessity that the prosecution allege or prove which statement was false. U.S. v. Apfelbaum, 445 U.S. 115 (1980).2
But the testimony must be compelled grand jury testimony, which is false in order to support a conviction. In re Grand Jury Proceedings (Greentree), 644 F.2d 348 (5th Cir. 1981).
“If telling the truth creates inconsistency with his prior testimony …the prior testimony is not admissible under § 1623(c).”
QUERY: Then how can it be presented under § 1623(c) which requires no showing of what particular testimony is false?
FED. R. CRIM. PRO. Rule 6(e)(1) now requires that “all proceedings except when the grand jury is deliberating or voting, shall be recorded stenographically or by an electronic recording device”.
In Texas, there is also a requirement to record proceedings by electronic device or sound recording. Art. 20.12 of the Tex. Code Crim. Pro provides that:
“Questions propounded by the grand jury or the attorney representing the state to a person accused or suspected and the testimony of that person to the grand jury shall be recorded either by a stenographer or by use of an electronic device capable of recording sound”. Tex. Code Crim. Pro. Art 20.012(a).
Accordingly, Counsel for a subpoenaed witness should file a written request for a court reporter and offer to pay such expenses. U.S. v. Thorensen, 428 F.2d 654, 666 (9th Cir. 1970); see also Dyche v. State, 490 S.W.2d 568 (Tex.Cr.App. 1973).