United States v. Wiggan

A Grand Juror may testify to the materiality of a defendant's testimony and to the physical arrangement of the Grand Jury room. However, if the testimony addresses the Grand Jury's opinion on the defendant's credibility, its probative value is outweighed by its prejudicial effect and it must not be admitted under Federal Rule of Evidence 403 analysis.

Joann Wiggan appealed her convictions for perjury and making false statements to the FBI. She presented three arguments. The Court accepted the first and rejected the second and third. Wiggan argued that the testimony of the Grand Jury foreman, Thomas Venable, that she was not credible was overly prejudicial and should not have been admitted according to Federal Rule of Evidence 403. The Second Circuit upheld the exclusion of similar testimony in United States v. Awadallah and the Ninth Circuit agrees with their assessment. Testimony from a member of the Grand Jury is permissible if it relates only to the materiality of a defendant's testimony. Venable's testimony went so far as to directly label the defendant as not credible. As a member of the Grand Jury, Venable had heard from hundreds of witnesses so he could have been seen as an expert by the jurors listening to his testimony. Probative value versus prejudicial effect is important in determining whether evidence is admissible. The Court suggests alternative means for presenting the evidence in Venable's testimony. Calling non-Grand Jury members present or admitting the Grand Jury transcript would have had equal probative value without the potential for unfairness inherent with calling a member of the Grand Jury. Wiggan's testimony at trial was a major factor in her defense to the perjury charge and Venable's testimony that the Grand Jury found her not credible had greater prejudicial effect than probative value. Venable's testimony does not pass Rule 403 analysis. REVERSED and REMANDED