Here's a question that has stumped us; anyone else want to take a crack at an answer?

Defense counsel submitted a �grand jury packet� on behalf of his client. The packet is written by defense counsel, but is basically a recitation of the facts from the Defendant�s point of view. The packet�s statement of facts admits to all of the elements of the offense. The packet asks for mercy from the grand jury and either a �no bill� or a true bill on a lesser misdemeanor offense. The grand jury indicted Defendant on the charged felony. The case was subsequently set for trial.

The same attorney is representing the Defendant in the jury trial. Can the State offer the grand jury packet as an admission by a party opponent under Texas Rules of Evidence 801(e)(2)(c)? Or stated another way, is a grand jury packet written by a defense attorney an adoptive admission by a party opponent?

doesn't this fall under CCP 20.02(g)?

I would think that 20.02(c) says a prosecutor can use it if she deem it necessary. The question seems to be whether the letter is admissible.

Well, I think (c) says you can use it to perform duties, but must tell whomever you give the info to that it must remain secret. This tells me it can be used to investigate, but not admitted as evidence.

There is caselaw out there that a witness can be impeached with their grand jury testimony. As for an adoptive admission, why not? The package is submitted only for the defendant's benefit--unless he successfully challenges knowledge of the contents. See, e.g., Rabbani v. S, 847 SW2d 555 (CCA 92); Hoffpauir v. S., 596 SW2d 139 (CCA 1980); Cochran v. S., 16 SW2d 1065 (CCA (1929); Johnson v. S., 148 SW 328 (CCA 1912)

[This message was edited by John A. Stride on 02-15-12 at .]

Impeachment requires that defendant testifies. As to GJ confessions a quote from fuller v. state 827 SW2d 919. "It is a long-standing principle that the voluntary sworn confession of an accused before a grand jury is admissible at trial." Medlock v. State, 108 Tx.Cr. 274, 1 S.W.2d 308, 311 (1927); Crosslin v. State, 90 Tx.Cr. 467, 235 S.W. 905, 908 (1921); Webb v. State, 86 Tx.Cr. 337, 216 S.W. 865, 866 (1919).
So, was it a voluntary and sworn?

Another question? would you have taken this to GJ without the packet? If the evidence is strong, forget it. Don't provide them with ammo for appeal.

The key is whether the State can prove the defendant affirmatively waived his attorney-client privilege and adopted the statements. Before accepting such a document and presenting it to a grand jury, how about asking the defense attorney to confirm in writing that the statement was obtained with the defendant's consent and knowledge and includes a waiver of any attorney-client or 5th or 6th Amendment privileges.

For a discussion of some relevant case law, see Carmona v. State.

How are you going to authenticate it?

Who's your sponsor?

It's been a while, but aren't documents produced by a party opponent self-authenticating? Or is that just a civil rule?

Does the lawyer for the defendant become a witness?

Given the "plea for mercy" and presumably the presence of the prosecution when the grand jury received the packet, won't the defense claim the statements were made in the course of plea discussions and inadmissible under rule 410(4)?

Plea bargaining with the grand jury?

Prove it up the hard way. If that packet doesn't guarantee an ineffective assistance claim, I don't know what does.

True that. But a fun riddle to answer. Thanks, Shannon.

Not so fast on calling it ineffective. Why isn't trying to persuade the grand jury to do something less damaging to your client a strategic decision by counsel? How is it any different from arguing to the jury that your guy should be found guilty of a lesser rather than that over-the-top charge the bad old State is asking for?

He just said it would lead to a claim. Not necessarily a valid claim.