Maddox v. Francemone, 5:19-cv-00678

Plaintiff, as administratrix of Gary Porter’s estate, brings a 42 U.S.C. § 1983 claim for excessive force against Officer Kelsey Francemone, stemming from Porter's shooting death by Francemone on June 19, 2016.
Key non-party witnesses, Khalil Davis (age 18 at the relevant time) and Carlos Stackhouse (age 13 at the relevant time), provided grand jury testimony in 2016 that Porter fired a gun before he was shot by Francemone.
Both Davis and Stackhouse are now unavailable or uncooperative: Davis refuses to testify, and Stackhouse claims no memory of the events.
Defendant moves to admit Davis’ grand jury testimony if he refuses to testify at trial; Plaintiff moves to exclude Stackhouse’s grand jury testimony except for impeachment or refreshing recollection.
The Court considers admissibility under both Fed. R. Evid. 801(d)(1)(A) (prior inconsistent statements) and 807 (residual hearsay exception).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Davis's grand jury testimony if he refuses to testify	Testimony should be excluded as hearsay, not sufficiently trustworthy	Testimony admissible as prior inconsistent or under 807	Granted: Davis’ grand jury testimony admissible if he refuses
Admissibility of Stackhouse's grand jury testimony	Should be excluded as unreliable, possible coercion, memory lapses	Admissible as prior inconsistent or under 807, corroborated	Denied: Stackhouse’s grand jury testimony admissible
Whether prior grand jury testimony meets trustworthiness standard	Claims of coercion, recantations undermine reliability	Statements given under oath, voluntary, corroborated	Found trustworthy based on full context
Whether testimony is more probative than alternatives	Other evidence could suffice	Only non-party witnesses supporting Defendant’s account	Testimony more probative than any alternative

United States v. Truman, 688 F.3d 129 (2d Cir. 2012) (prior inconsistent grand jury statements admissible if witness testifies inconsistently or refuses to answer)
United States v. Marchand, 564 F.2d 983 (2d Cir. 1977) (inconsistency may include refusal to answer or memory loss)
United States v. Owens, 484 U.S. 554 (1988) (witness is subject to cross-examination even if memory is limited)
O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29 (2d Cir. 2003) (defining standards for excessive force under the Fourth Amendment)
United States v. Clarke, 2 F.3d 81 (4th Cir. 1993) (setting out trustworthiness factors for residual hearsay exception)
United States v. Earles, 113 F.3d 796 (8th Cir. 1997) (grand jury testimony admissibility under Rule 807 where witness refuses to testify)