3.Unavailable-Witness FBI 302 Readings and Jury Cautions
35 lines(SIDEBAR CONFERENCE AS FOLLOWS:
MR. WEINREB: Your Honor, it's not related to this witness, but I didn't know if we were going to have another chance before the witness is called. So with respect to the so-called reader who's going to read 302s, we have an outstanding motion with respect to Viskhan Vakhabov to bar his testimony through a 302. But I wanted the Court to know that last night, in the event that the Court rules against the government on that one, the parties traded essentially proposed redacted 302s, and I wanted to just hand those up in case you want to look at them.
THE COURT: That would be great. Remind me about his -- is he one who would claim the Fifth Amendment?
MR. WEINREB: Yes. That's what we were told by the defense.
THE COURT: Okay. Let me just say, I thought about it a good deal overnight. Given the rules of the game for this stage of the case and the statute, if a witness is truly unavailable as opposed to unwilling, I will permit 302s subject to reasonable redactions to be used, but I will accompany it with a caution to the jury about the differences between relying on that kind of evidence and evidence that they see here in the courtroom from witnesses who are under oath and are cross-examined. I think it's appropriate to caution them about that.
With respect to a witness who is unavailable by reason of his invocation of the Fifth Amendment, I think that may also be appropriate to advise the jury of as a caution and in understanding that testimony.
MS. CONRAD: Could I just suggest, your Honor, with respect to Dolakov, your Honor, he's unavailable because we can't find him.
THE COURT: Right.
MS. CONRAD: There's certain people -- I would suggest that the jury just be told that this person is unavailable.
THE COURT: For him, I agree.
MS. CONRAD: Saying he's unavailable because of the invocation of the Fifth, I think, is more prejudicial than it is relevant, especially --
THE COURT: I think it may bear on the jury's assessment of the evidence.
MS. CONRAD: Especially if the reason why he's taking the Fifth has nothing to do with the subject matter of what we're putting in. For example, if we were going to put in a witness like -- who has some knowledge, let's say, of the transfer of the gun to Mr. Tsarnaev but we were going to offer a 302 regarding other matters and his invocation of the Fifth had nothing to do with the matters we were putting in, it seems to me that it is more prejudicial than probative to tell the jury that he would take the Fifth about some other matter. We may have witnesses, for example, who would take the Fifth with respect to drug use or drug sales and so --
THE COURT: I'm not sure it's -- with respect to another matter, if he's invoking when asked to testify here --
MS. CONRAD: He's invoking because he knows he could be asked on cross-examination --
THE COURT: Okay. So these are the ones that are more or less agreed to, is that it?
MR. WEINREB: No.
THE COURT: Okay.
MR. WEINREB: This is where we have not agreed.
MS. CONRAD: These are dueling versions.
MR. WEINREB: Essentially, the government's view is that anything that is the witness' impression, characterization, opinion, as opposed to simply recounting something that the witness saw or heard with their own eyes and is repeated for the jury, I mean, that alone is problematic because we can't explore whether the witness really had an opportunity to hear or see it accurately in the fist place, whether they're remembering it accurately, whether they're retelling it accurately. But when it comes to their impressions, for example, Mr. Vakhabov says the only thing that would have caused Jahar to do this is if his brother pushed him into it or brainwashed him or that Jahar is like a little boy. That's the kind of thing you need to cross-examine on.
THE COURT: Yellow is?
MR. WEINREB: The black -- the yellow is the government's proposed redactions.
THE COURT: So this matches in the first page?
MR. WEINREB: Yes, exactly.
MS. CONRAD: Right.
MR. WEINREB: And this is the --
THE COURT: Okay.
MS. CONRAD: So the blacked-out -- may I just say, your Honor, with respect to the last piece, I understand, like, the only thing that could have caused Jahar to do this would be his older brother, that's an opinion. It's speculation. I get that. But to say he was like a little boy, that's his observation, just like a witness, How would you describe so and so?
THE COURT: I think I'll have to do the comparison before we get to Vakhabov because I'll have to -- so we may have to take a short break to do that.
MS. CONRAD: I don't think we'll get there until after lunch anyway.
THE COURT: That's fine.
MR. WEINREB: Then there's another witness, this Mirra Kuznetsov, who we're told is ill, but I don't think there's been a sufficient showing that she won't get better by the end of the week or next week.
MS. CONRAD: It's chronic.
MR. FICK: -- that causes her great distress, and the stress of this is -- the prospect of testifying really has her beside herself. I think she's endeavoring to get some kind of an actual note from a doctor about that.
THE COURT: I think I'll need more than a representation. Okay. All right.