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"In Daye, we held that prior inconsistent testimony by a witness before a grand jury, under certain conditions, could be admitted as substantive evidence." The same is true for testimony taken during a probable cause hearing. Commonwealth v. Sineiro, 432 Mass. 735, 741, 740 N.E.2d 602 (2000), citing Commonwealth v. Daye, 393 Mass. 55, 469 N.E.2d 483 (1984).
"(W)hen a trial witness recants prior grand jury testimony, only to offer directly inconsistent statements in the witness's trial testimony, the prior inconsistent grand jury statements may be introduced at trial as substantive evidence, the truth of which may be weighed by the jury, so long as certain foundational requirements are present." Commonwealth v. Ragland, 72 Mass. App. Ct. 815, 894 N.E.2d 1147 (2008).
Foundational requirements. A prior inconsistent statement made under oath or penalty of perjury at certain proceedings is not hearsay and is admissible for the truth of the matter asserted if "(t)he declarant testifies and is subject to cross-examination about a prior statement, and the statement (i) is inconsistent with the declarant's testimony; (ii) was made under oath before a grand jury, or at an earlier trial, a probable cause hearing, or a deposition, or in an affidavit made under the penalty of perjury in a G.L. c. 209A proceeding; (iii) was not coerced; and (iv) is more than a mere confirmation or denial of an allegation by the interrogator." Mass. G. Evid. [section] 801(d)(1)(A) (emphasis added).
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