The "Forgetful" Witness

Charge: conspiracy to commit mail fraud. D was indicted with two alleged co-conspirators who pled guilty before defendant's trial. W, one of these co-conspirators, was called at D's trial by the prosecution to testify to the details of D's participation in the alleged mail fraud. But W testified that he could not remember these details. At this point the prosecution sought to introduce W's grand jury testimony on these points. D objected. On voir dire W states that he does not remember making the statements attributed to him before the grand jury nor does he now remember the details of the alleged mail fraud.

(1) Are W's prior statements before the grand jury "inconsistent"?

(2) Does testimony before the grand jury fall within 801(d)(1)(A)? Should it? Compare the limitations on the use of former testimony in Rule 804(b)(1). What does "other proceeding," as used in Rule 801(d)(1)(A), include?

(3) Would it make any difference to the admissibility of W's grand jury testimony if W were present in the courtroom but was not called by the prosecution to testify? Should it?

(4) Is W "subject to cross-examination" concerning the grand jury testimony?

(5) Have D's sixth amendment rights been violated?

(6) Would your analysis of any of the above questions be any different if instead of grand jury testimony the prosecution sought to introduce in this situation:

(a) W's testimony at a preliminary hearing at which he was actually cross-examined by D's attorney; or

(b) W's statements to the arresting officer while in custody prior to indictment?