United States v. MacCloskey

Jack MacCloskey and Patsey Edwards (defendants) were prosecuted for conspiring to murder government witnesses; before trial, the government agreed to drop Edwards's indictment but warned that if she testified against MacCloskey and incriminated herself, she could be reindicted. At a voir dire hearing, Edwards gave testimony that contradicted the government's key evidence and exculpated both defendants, but once her indictment was dropped and MacCloskey's trial began, she indicated she would invoke her Fifth Amendment privilege if called. The trial judge stated he would "not pursue the matter" if Edwards invoked the privilege and ruled that doing so would not make her unavailable under Rule 804; Edwards then testified but refused, on Fifth Amendment grounds, to answer questions covering her earlier voir dire testimony, and the judge denied MacCloskey's request to admit that voir dire testimony as the statement of an unavailable witness.