United States v. MacCloskey

The United States government (plaintiff) prosecuted Jack MacCloskey and Patsey Edwards (defendants) for conspiring to murder two government witnesses. Before trial, the prosecutor indicated that Edwards’ indictment would be dropped. The prosecutor told Edwards’ attorney to remind Edwards that if she testified at MacCloskey’s trial and incriminated herself during the testimony, she could be reindicted. The trial judge held a voir dire hearing to explore Edwards’ potential testimony. Edwards' voir dire testimony directly contradicted the government's main evidence and exculpated both Edwards and MacCloskey. After Edwards’ indictment was dropped and MacCloskey’s trial began, Edwards made it known that, if called to testify at trial, she would invoke her Fifth Amendment privilege against self-incrimination. MacCloskey requested that if Edwards refused to testify, Edwards' prior voir dire testimony be admitted into evidence under the Federal Rule of Evidence 804 hearsay rule exception for unavailable witnesses. The judge stated: (1) if Edwards invoked the Fifth Amendment, he "would not pursue the matter" because he had no right to determine if the invocation was proper; and (2) invocation of the Fifth Amendment would not make Edwards an unavailable witness for purposes of Rule 804. Edwards testified at trial, but invoked her Fifth Amendment privilege to refuse answering questions on matters covered in her voir dire testimony. Edwards explained she was concerned her testimony could lead to her reindictment. The judge denied MacCloskey's motion to admit Edwards' voir dire testimony under Rule 804. The jury convicted MacCloskey. On appeal to the United States Court of Appeals for the Fourth Circuit, MacCloskey argued the judge erred in denying his motion.