Everett C. McKethan v. United States, 439 U.S. 936 (1978). · Go Syfert
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Everett C. McKethan v. United States, 439 U.S. 936 (1978). Cases Citing This Book View Copy Cite
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cited 4× by 1 distinct case · “standards of reliability should not prevent appropriate police action when a victim of a crime immediately has contacted the police”
cited 3× by 1 distinct case · “Unlike a person who makes an anonymous phone call . .. the informant was in a position to be held accountable for his intervention. The reliability of the information was thus increased.”
216 citation events (27 in the last 25 years) across 65 distinct courts.
Strongest positive: State v. Gaston (connappct, 2004-03-23) · Strongest negative: Pueblo Of Jemez v. United States (nmd, 2018-11-15)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 33 distinct citers. How cited ↗
discussed Cited "but see" Pueblo Of Jemez v. United States
D.N.M. · 2018 · signal: but cf. · confidence high
But cf. Garner v. United States , 439 U.S. 936 , 940 n.3, 99 S.Ct. 333 , 58 L.Ed.2d 333 (1978) (Stewart, J., dissenting)("It seems to me open to serious doubt whether [the residual exception] was intended to provide case-by-case hearsay exceptions, or rather only to permit expansion of the hearsay exceptions by categories.").
discussed Cited "but see" Foster v. United States (2×)
D.C. · 1988 · signal: but see · confidence high
But see United States v. Stewart, 579 F.2d 356 (5th Cir.) (per curiam) (statement admissible so long as it is not incriminating “on its face”), cert. denied, 439 U.S. 936 , 99 S.Ct. 332 , 58 L.Ed.2d 332 (1978).
discussed Cited as authority (quoted) State v. Gaston
Conn. App. Ct. · 2004 · quote attribution · 1 verbatim quote · confidence low
standards of reliability should not prevent appropriate police action when a victim of a crime immediately has contacted the police
discussed Cited as authority (quoted) United States v. Mark J. Kent
11th Cir. · 1982 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence low
unlike a person who makes an anonymous phone call . .. the informant was in a position to be held accountable for his intervention. the reliability of the information was thus increased.
cited Cited as authority (rule) United States v. McHan
4th Cir. · 1996 · confidence medium
McKethan v. United States, 439 U.S. 936 14 (1978); United States v. West, 574 F.2d 1131, 1136 (4th Cir. 1978).
discussed Cited as authority (rule) Commonwealth v. Meech
Mass. · 1980 · confidence medium
For the insistence on corroboration of hearsay offered under the innominate exception, see United States v. Garner, 574 F.2d 1141, 1143-1146 (4th Cir.), cert. denied, 439 U.S. 936 (1978); United States v. West, 574 F.2d 1131, 1135-1136 (4th Cir. 1978) *498 (both instances of grand jury testimony offered by the government at trial; as to the Sixth Amendment problem, see Justice Stewart’s dissent from the Court’s denial of certiorari in Garner , in which he expressed “grave doubts” regarding the admissibility of the testimony. 439 U.S. at 938).
discussed Cited as authority (rule) United States v. Edward Rodriguez, A/K/A Rick, Thomas J. Albernaz, Peter Smigowski, and William John Martins (2×)
5th Cir. · 1980 · confidence medium
I believe the Court of Appeals properly decided this issue, and would limit the grant of certiorari to the evidentiary question. 439 U.S. at 936-37, 99 S.Ct. at 334 , 58 L.Ed.2d at 333 .
discussed Cited "see" United States v. Francisco Colorado Cessa
5th Cir. · 2017 · signal: accord · confidence high
Leading questions are permitted in grand jury proceedings, so long as “a duly-sworn *143 witness actually testified] to the factual correctness of all the [leading] questions asked.” United States v. Brown, 872 F.2d 385, 388 (11th Cir. 1989); accord McKethan v. United States, 439 U.S. 936 , 938, 99 S.Ct. 333 , 58 L.Ed.2d 333 (1978) (“In grand jury proceedings, the ordinary rules of evidence do not apply.
discussed Cited "see" Beverly Best v. State
Tex. App. · 2005 · signal: see · confidence high
See United States v. Sierra-Hernandez, 581 F.2d 760 , 763 n.1 (9th Cir.), cert. denied, 439 U.S. 936 (1978); State v. Fudge, 42 S.W.3d 226, 232 (Tex. App.—Austin 2001, no pet.); Sailo, 910 S.W.2d 189 .
discussed Cited "see" Beverly Best v. State
Tex. App. · 2005 · signal: see · confidence high
See United States v. Sierra-Hernandez , 581 F.2d 760 , 763 n.1 (9th Cir.), cert. denied , 439 U.S. 936 (1978); State v. Fudge , 42 S.W.3d 226, 232 (Tex. App.--Austin 2001, no pet.); Sailo , 910 S.W.2d 189 .
cited Cited "see" Commonwealth v. Love
Mass. App. Ct. · 2002 · signal: see · confidence high
See Commonwealth v. Barros, supra at 177 n.7, discussing United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir.), cert. denied, 439 U.S. 936 (1978).
cited Cited "see" State v. Stolte
Tex. App. · 1999 · signal: see · confidence high
See United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir.), cert. denied, 439 U.S. 936 , 99 S.Ct. 333 , 58 L.Ed.2d 333 (1978).
discussed Cited "see" United States v. Antonio Fernandez, Jorge Recarey, Mariano Villa Del Ray (2×)
11th Cir. · 1990 · signal: see · confidence high
See Garner, 439 U.S. at 938 , 99 S.Ct. at 335 (Stewart, J., dissenting from denial of certiorari) (“That the evidence was first given before a grand jury adds little to its reliability.
cited Cited "see" Richard A. Barker v. Paul Morris, Warden, California State Prison at Folsom
9th Cir. · 1985 · signal: see · confidence high
See United States v. Garner, 574 F.2d 1141, 1144 (4th Cir.), cert. denied, 439 U.S. 936 , 99 S.Ct. 333 , 58 L.Ed.2d 333 (1978); West, 574 F.2d 1181, 1135 ; Snow, 521 F.2d at 735 .
discussed Cited "see" Edwards v. State
Ga. Ct. App. · 1983 · signal: see · confidence high
United States v. Gidley, 527 F2d 1345 (2) (5th Cir.), cert. den., 429 U.S. 841 (1976); see United States v. Mireles, 583 F2d 1115 (10th Cir.), cert. den., 439 U.S. 936 (1978); United States v. Williamson, 567 F2d 610 (4th Cir. 1977); see also People v. De Bour, 40 NY2d 210, 220 ( 352 NE2d 562, 570 ; 386 NYS2d 375, 383 ) (1976).
cited Cited "see" United States v. Jeffrey A. Barlow
6th Cir. · 1982 · signal: see · confidence high
See Garner v. United States, 439 U.S. 936 , 939, 99 S.Ct. 333 , 335, 58 L.Ed.2d 333 (Stewart, J., dissenting), denying cert. to 574 F.2d 1141 (4th Cir.1978); 4 J.
discussed Cited "see" Johnson v. State
Md. Ct. Spec. App. · 1982 · signal: see · confidence high
See United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir.), cert. den., 439 U.S. 936 (1978); United States v. Gorin, 564 F.2d 159 (4th Cir. 1977), cert. den., 434 U.S. 1080 (1978); People v. Tooks, 271 N.W.2d 503 (Mich. 1978); People v. Lopez, 52 Cal.App.3d *591 263 (1975); United States v. Walker, 294 A.2d 376 (D.C. 1972), appeal dismissed, 304 A.2d 290 (D.C.), cert. den., 414 U.S. 1007 (1973); State v. Bolden, 380 So.2d 40 (La.), cert. den., 449 U.S. 856 (1980); People v. Jeffries, 197 N.W.2d 903 (Mich.App. 1972). 3 We find this line of authority, and the reasoning behind it, persuasive.
cited Cited "see" United States v. Albert Rolland Bassler, United States of America v. George Robert Glover, United States of America v. Wayne Wesley Sprecher
8th Cir. · 1981 · signal: see · confidence high
See United States v. Winters, 434 F.Supp. 1181, 1186 (N.D.Ind.1977), aff’d, 582 F.2d 1152 (7th Cir.), cert. denied, 439 U.S. 936 , 99 S.Ct. 333 , 50 L.Ed.2d 332 (1978).
discussed Cited "see" United States v. Dale Murray, Paul Leahey, Ronald Vanderbosch, Lawrence Tower, and Linton Sherlock
2d Cir. · 1980 · signal: see · confidence high
See United States v. Garner, 574 F.2d 1141, 1146-47 (4th Cir.), cert. denied, 439 U.S. 936 , 99 S.Ct. 337 , 58 L.Ed.2d 333 (1978); United States v. Houltin, 525 F.2d 943, 950-52 (5th Cir. 1976), vacated in part sub nom.
discussed Cited "see, e.g." People v. Katt
Mich. · 2003 · signal: see, e.g. · confidence low
See, e.g., McKethan v United States, 439 US 936 ; 99 S Ct 333 ; 58 L Ed 2d 333 (1978) (Justices Stewart and Marshall dissenting from the Court’s denial of writs of certiorari and contending that the Court should resolve the circuit split on this issue[.]).
discussed Cited "see, e.g." People v. Katt
Mich. Ct. App. · 2002 · signal: see, e.g. · confidence low
See, e.g., McKethan v United States, 439 US 936 ; 99 S Ct 333 ; 58 L Ed 2d 333 (1978) (Justices Stewart and Marshall dissenting from the Court’s denial of writs of certiorari and contending that the Court should resolve the circuit split on this issue.).
discussed Cited "see, e.g." State v. Eichholtz
Ind. Ct. App. · 2001 · signal: see, e.g. · confidence low
See, e.g., United States v. Sierra-Hernandez, 581 F.2d 760, 762-764 (9th Cir.1978) (holding that reasonable suspicion existed to pull over the defendant's truck based on the cireumstances surrounding an anonymous informant stopping his car to tell an officer via a face-to-face conversation that the defendant's truck had been involved in criminal activity), cert. denied, 439 U.S. 936 , 99 S.Ct. 333 , 58 L.Ed.2d 333 (1978); see also J.L., 529 U.S. at 274-276, 120 S.Ct. at 1380-1381 (Kennedy, J., concurring).
discussed Cited "see, e.g." Mun Phan v. Trinity Regional Hospital
N.D. Iowa · 1998 · signal: see, e.g. · confidence low
See, e.g., McKethan v. United States, 439 U.S. 936 , 99 S.Ct. 333 , 58 L.Ed.2d 333 (1978) (Justices Stewart and Marshall dissenting from the Court’s denial of writs of certiorari and contending that *1022 the Court should resolve the circuit split on this issue).
discussed Cited "see, e.g." United States v. Donald Lee Earles
8th Cir. · 1997 · signal: see, e.g. · confidence low
See, e.g., McKethan v. United States, 439 U.S. 936 (1978) (Justices Stewart and Marshall dissenting from the Court’s denial of writs of certiorari and contending that the Court should resolve the circuit split on this issue).
discussed Cited "see, e.g." People v. Geraci
NY · 1995 · signal: see also · confidence low
Furthermore, Grand Jury testimony is often obtained through grants of immunity, leading questions and reduced attention to the rules of evidence — conditions which tend to impair its reliability (see, e.g., United States v Flores, 985 F2d 770, 776, n 14 [5th Cir]; United States v Fernandez, 892 F2d 976, 981 [11th Cir]; United States v Gonzalez, 559 F2d 1271, 1273 [5th Cir]; see also, Gamer v United States, 439 US 936 , 938 [Stewart, J., dissenting from denial of certiorari]).
discussed Cited "see, e.g." United States v. Dale J. Doerr, John Paul Doerr, Josephine Christofalos, Christa D. Pixley, and Archie J. Pixley
7th Cir. · 1989 · signal: see also · confidence low
This factor alone, however, may not "markedly enhance the reliability of [a witness'] testimony." Snyder, 872 F.2d at 1355 ; see also id. (" '[T]hat evidence was given before a grand jury adds little to its reliability.’ ”) (quoting Garner v. United States, 439 U.S. 936 , 938, 99 S.Ct. 333 , 335, 58 L.Ed.2d 333 (1978) (Stewart & Marshall, JJ., dissenting from denial of certification)). 17 .
discussed Cited "see, e.g." United States v. James Earl Miller
6th Cir. · 1988 · signal: see, e.g. · confidence low
See, e.g., United States v. Garner, 574 F.2d 1141 (4th Cir.), cert. denied sub nom., McKethan v. United States, 439 U.S. 936 (1978); United States v. Hughes, 411 F.2d 461, 466 (2d Cir.), cert. denied, 396 U.S. 867 (1969). 21 Tinsley took the stand and was subjected to both direct and cross examination (albeit limited by Miller's choice) during the hearing to determine her availability as a witness.
cited Cited "see, e.g." United States v. Herbert J. Lewis and Vernon Abrahams
5th Cir. · 1986 · signal: see also · confidence low
See also United States v. Stewert, 579 F.2d 356, 359 (5th Cir.), cert. denied, 439 U.S. 936 , 99 S.Ct. 332 , 58 L.Ed.2d 332 (1978). 11 .
cited Cited "see, e.g." Crawley v. State
Ala. Crim. App. · 1983 · signal: see also · confidence low
See also United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir.1978), cert. denied, 439 U.S. 936 , 99 S.Ct. 333 , 58 L.Ed.2d 333 (1978); Bell v. United States, 280 F.2d 717 (D.C.Cir.1960).
discussed Cited "see, e.g." United States v. Michael G. Thevis, Alton Bart Hood, Global Industries, Inc., Anna Jeanette Evans
5th Cir. · 1982 · signal: see also · confidence low
See also the dissent of Justices Stewart and Marshall from the denial of certiorari in United States v. Garner, 574 F.2d 1141 (4th Cir.), cert. denied, 439 U.S. 936 , 99 S.Ct. 333 , 58 L.Ed.2d 333 (1978) which strongly implies that grand jury testimony may not meet the reliability standards of Rule 804(b)(5). 13 .
discussed Cited "see, e.g." Paul A. Zeigler v. William T. Callahan
1st Cir. · 1981 · signal: compare · confidence low
Compare United States v. Garner, 574 F.2d 1141, 1144 (4th Cir.), cert. denied, 439 U.S. 936 , 99 S.Ct. 333 , 58 L.Ed.2d 333 (1978); and United States v. Carlson, 547 F.2d 1346, 1353-55 (8th Cir.), cert. denied, 431 U.S. 914 , 97 S.Ct. 2174 , 53 L.Ed.2d 224 (1977) (grand jury testimony admitted at request of prosecution), with United States v. Henry, 448 F.Supp. 819, 821 (D.N.J.1978); and United States v. Driscoll, 445 F.Supp. 864, 866 (D.N.J.1978) (grand jury testimony admissible on motion of defense counsel under prior testimony exception to hearsay rule).
discussed Cited "see, e.g." United States v. Phillip R. Balano (2×)
10th Cir. · 1980 · signal: see also · confidence low
See also United States v. Garner, 574 F.2d 1141 (4th Cir.), cert. denied, 439 U.S. 936 , 99 S.Ct. 333 , 58 L.Ed.2d 333 (1978).
cited Cited "see, e.g." United States v. Tallice Andrews
6th Cir. · 1979 · signal: see also · confidence low
See also discussion in United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir.), cert. denied, 439 U.S. 936 , 99 S.Ct. 333 , 58 L.Ed.2d 333 (1978). 16 .
Retrieving the full opinion text from the archive…
McKethan
v.
United States; And Garner v. United States
77-1545; 77-1557.
Supreme Court of the United States.
Oct 30, 1978.
439 U.S. 936
Stewart, Marshall.
Cited by 21 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: bottom 67%
Citer courts: Eleventh Circuit (1) · Connecticut Appellate Court (1)
Reporter's Syllabus — editorial summary, not part of the Court's opinion

Earl A. GARNER

v.

UNITED STATES

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.

Lead Opinion

C. A. 4th Cir. Certiorari denied. Reported below: 574 F. 2d 1141.

Dissent

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.[1]

[*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. 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,[*938] and particularly unwilling to say anything which would incriminate either of these defendants.” 574 F. 2d 1141, 1143 (1978).

The grand jury testimony was the main support for the jury’s guilty verdict against one of the petitioners, and an important part of the prosecution’s case against the other.

A divided panel of the Court of Appeals for the Fourth Circuit affirmed the petitioners’ convictions, concluding that neither the Federal Rules of Evidence nor the Confrontation Clause barred the admission of Robinson’s grand jury testimony because it possessed “strong indicators of reliability.” Id., at 1144. The Court of Appeals found that Robinson’s story was corroborated by testimony at the trial from another member of the alleged conspiracy and by documentary evidence of the petitioners’ overseas travels.

Although they are not coextensive, the Confrontation Clause and the hearsay rule “stem from the same roots.” Dutton v. Evans, 400 U. S. 74, 86 (1970). Considered under either the Sixth Amendment or the Federal Rules of Evidence, I have grave doubts about the admissibility of Robinson’s grand jury testimony.

That the evidence was first given before a grand jury adds little to its reliability. In grand jury proceedings, the ordinary rules of evidence do not apply. Leading questions and multiple hearsay are permitted and common. Grand jury investigations are not adversary proceedings. No one is present to cross-examine the witnesses, to give the defendant’s version of the story, or to expose weaknesses in the witnesses’ testimony.

The only factor that generally makes grand jury testimony more trustworthy than other out-of-court statements is the fact that it is given under oath. The witnesses speak under the threat of prosecution for material false statements. But that usual indication of trustworthiness was missing here.[*939] Robinson recanted bis grand jury testimony at the trial. By disclaiming under oath his earlier sworn statements, he put himself in a position where one of his two sworn statements had to be false. Without further proof, Robinson would appear to have violated federal law, and, after the petitioners’ trial, the Government did, indeed, indict Robinson for violation of 18 U. S. C. § 1623. The charges were dismissed only after he pleaded guilty to a contempt citation.

The Courts of Appeals are struggling with the problem of the admissibility of hearsay evidence not falling within one of the traditional exceptions to inadmissibility. The Fourth Circuit has taken a relatively liberal view of the admissibility of grand jury testimony, both in this case and in United States v. West, 574 F. 2d 1131 (1978). In a similar situation the Fifth Circuit concluded that grand jury testimony was inadmissible. United States v. Gonzalez, 559 F. 2d 1271 (1977). Before the adoption of the Federal Rules of Evidence, the Second Circuit held that the use of grand jury testimony in a situation like this violated both the hearsay rule and the Sixth Amendment. United States v. Fiore, 443 F. 2d 112 (1971). The Eighth Circuit, in a case in which the grand jury witness had not recanted his testimony, allowed the grand jury testimony to be admitted. United States v. Carlson, 547 F. 2d 1346 (1976).

While those cases may be factually distinguishable, the conflict in interpretation among the Circuits remains.[3] In some Circuits Rule 804 (b) (5) is being used to admit grand jury testimony when the witness is unavailable at trial; in others, it is not. Here, the witness recanted his grand jury testimony under oath at the trial, yet it was the crucial evidence in these petitioners’ convictions.

I would grant certiorari to determine the limits placed upon[*940] the admissibility of this kind of evidence by either the Federal Rules of Evidence or the Constitution.

1

Garner also contends that the prosecution proved that he participated in no more than one conspiracy. Thus, he argues that he should not have received consecutive sentences after conviction on the two eon-[*937] spiraey counts. I believe the Court of Appeals properly decided this issue, and would limit the grant of certiorari to the evidentiary question.

2

Rule 804 (b)(5) provides:

“(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: . . .
“(5) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.”
3

It seems to me open to serious doubt whether Rule 804 (b) (5) was intended to provide case-by-case hearsay exceptions, rather than only to permit expansion of the hearsay exceptions by categories.