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August 21, 2015

New York Court Of Appeals Sets Limits On When Grand Jury Testimony Can Be Used By Prosecutor At Trial

By Michael H. Joseph

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Courts have struggled with the standard of when they will allow grand jury testimony to be used by prosecutors as evidence in their case in chief to prove a defendant’s guilt at trial.

The introduction of grand jury testimony as evidence-in-chief is normally prohibited because it is violative of both the evidentiary rule barring hearsay testimony and the constitutional right of confrontation. Such testimony would not otherwise be admissible because it has not been subjected to “the vigorous truth testing of cross-examination by a criminal defense lawyer, Recently, the New York Court of Appeals, for the first time, however, rejected a prosecutor’s attempt to introduce grand jury testimony of a recalcitrant witness where the People relied on only a speculative inference to establish the defendant’s misconduct.

Even though prosecutors bear a heavy burden in seeking to introduce grand jury testimony when a witness is unavailable at trial. Prosecutors may, utilize a framework of inferential reasoning that relies on circumstantial evidence. However, any inferences must be adequately supported by sufficient facts in the record from which a court may infer that the defendant, or those at defendant’s direction or acting with defendant’s knowing acquiescence, caused the unavailability of the witness.This situation typically arises in cases involving gang or organized crime. The situation arises where a prosecution witness is unavailable at trial and the government wants to read into evidence their testimony at a grand jury proceeding where they are not subject to cross examination and in New York a lawyer for the defense cannot even be present. The underlying rationale is that the defendant has intimidated the witness so it is fair, however, often witnesses don’t appear for a number of reasons and our New York City lawyers know that the most common reasons that complaining witnesses don’t come to a trial is that they were lying in the first place or just used a prosecution for an ulterior purpose.

In the case before the New York Court of Appeals, the witness’ brother was approached by members of the same religious group, and they had accused the witness of being a snitch and the witness believed the threat was from this organization. As a result, the witness testified at the Sirois hearing that he was fearful and would not testify at trial because he thought his siblings would be hurt if he did so.Based on the witness’ testimony, the trial court inferred that, the defendant had disclosed to the witness’ identity and that the witness’ anticipated testimony would be damaging to the defendant and that the threats to the witness’ family were directed by the defendant. The Court of Appeals held that the trial court erred in concluded that the witness’ refusal to testify was based solely on the threats made to his family and in allowing the witness’ grand jury testimony to be introduced into evidence. The Court of Appeals reversed, because some of the inferences drawn by the trial court were based on pure speculation.
New York City criminal defense lawyers should take notice of this new ruling and continue to fight impermissible attempts to put untested grand jury testimony before criminal juries in lieu of live testimony because it prevents cross examination, which often exposes false or exaggerated testimony, which may be critical to a not guilty finding.

 
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