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People v. Robinson, 89 N.Y.2d 648 (Mar. 27, 1997).

EVIDENCE - TESTIMONY - GRAND JURY - UNAVAILABLE WITNESS - HEARSAY

THE COURT MAY ALLOW THE ADMISSION OF EXCULPATORY GRAND JURY TESTIMONY AT TRIAL WHEN THE WITNESS IS UNAVAILABLE AND THE TESTIMONY IS RELIABLE

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

A Grand Jury indicted defendant for sexual assault in the first degree and sexual misconduct. Defendant's fiancee offered exculpatory testimony before the Grand Jury but left the jurisdiction before trial and refused to return to New York. Defendant made a motion for the admission of his now-estranged wife's Grand Jury testimony on the grounds that (1) the testimony was material and (2) the witness was unavailable despite defendant's due diligence in attempting to get her to return to New York. The trial court denied the motion. The Appellate Division reversed.

ISSUE & DISPOSITION

Issue

Whether a defendant's constitutional right to due process requires the admission of hearsay evidence consisting of Grand Jury testimony when the declarant has become unavailable to testify at trial.

Disposition

Yes. The Grand Jury testimony was sufficiently reliable under these circumstances to merit its admission at trial.

AUTHORITIES CITED

Cases Cited by the Court

Other Sources Cited by the Court

RELATED SOURCES

  • United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993).
  • United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984)
  • United States v. Klauber, 611 F.2d 512, 516-17 (4th Cir. 1979), cert. denied, 446 U.S. 908 (1980).
  • Commonwealth v. Martinez, 425 N.E.2d 300 (Mass. 1981).
  • People v. Colon, 473 N.Y.S.2d 301 (N.Y. Sup. Ct. 1984).
  • Jones v. State, 843 S.W.2d 487, 491 (Tex. Ct. Crim. App. 1992).

COMMENTARY

State of the Law Before Robinson

The U.S. Supreme Court has addressed the general importance of a defendant's right to present witnesses in his or her own defense. Chambers v. Mississippi, 410 U.S. 284 (1973) (right of defendant to present witnesses is fundamental and essential to due process); Washington v. Texas, 388 U.S. 56 (1967) (defendant's right to present own witnesses is a fundamental element of due process of law). New York has not previously addressed the issue of whether a defendant has a due process right to introduce Grand Jury testimony in a criminal case. This question was expressly left open by the court in People v. Gonzalez, 54 N.Y.2d 729 (N.Y. 1981).

New York Criminal Procedure Law § 670.10 [hereinafter CPL 670.10] "lists only three proceedings for which former testimony may be admissible at trial," and a Grand Jury proceeding is not one of them. N.Y. Crim. Proc. Law § 670.10 (McKinney 1985); Robinson at para. 8. The court has found that the list in CPL 670.10 is "exclusive." People v. Harding, 37 N.Y.2d 130, 134 (N.Y. 1975). Nonetheless, the court has sanctioned the admissibility of Grand Jury testimony that falls beyond the scope of CPL 670.10 in order to serve "the public policy of reducing the incentive to tamper with witnesses." People v. Geraci, 85 N.Y.2d 359, 365-366 (N.Y. 1995) (Grand Jury testimony admissible at later trial upon proof that the defendant, through violence, threats or chicanery, had caused the disappearance of the witnesses who gave the prior testimony). See Robinson at para. 9; People v. Colon, 473 N.Y.S.2d 301 (1984) (inculpatory testimony of a Grand Jury witness, who was intimidated by associates of defendant, is admissible due to defendant misconduct despite the availability of the witness).

Effect of Robinson on Current Law

The defendant's right to due process of law allows the introduction of exculpatory Grand Jury testimony. However, three requirements must be met before the court will admit Grand Jury testimony. First, the declarant must be unavailable. Robinson at para. 14. In this case, despite due diligence, the defendant was unable to produce his now-estranged wife for trial. Second, the testimony must be material. Robinson at para. 14. The exculpatory testimony in this case was clearly material to the defense. Third, the admission of Grand Jury testimony must be based upon a showing of reliability. This case hinged upon the third requirement.

In addressing the third requirement, the court examined the scope of the prosecution's examination of the witness before the Grand Jury. "[T]he fair and full opportunity for cross-examination . . . serves as a baseline indicator for reliability." Robinson at para. 17. In this case, the prosecutor's use of leading questions in examining the fiancee satisfied the essential purpose of cross-examination and thereby "ensure[d] a level of trustworthiness for admissibility." Robinson at para. 22 (citing Ohio v. Roberts, 448 U.S. 56, 66 (1980)). The court found further indicia of reliability in the fact that the Grand Jury testimony was given under oath. Robinson at n.4.

In this case, the court admitted the Grand Jury testimony. However, the court suggested that the admission of exculpatory Grand Jury testimony is a highly fact-specific question.

Unanswered Questions

Although the Court established that a defendant may introduce Grand Jury testimony under certain circumstances, the Court did not provide clear guidelines for lower courts to follow in evaluating the reliability of a Grand Jury examination. The Court did not even provide examples of what would constitute clearly unreliable testimony.

Survey of the Law in Other Jurisdictions

In considering the admission of exculpatory Grand Jury testimony, other jurisdictions have adhered to the same three requirements. However, under the third requirement, courts often consider the scope and rigor of the prosecution's examination during examination.

Several federal circuits and state courts have found the government's direct examination of the witness during grand jury sufficient. United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984); United States v. Klauber, 611 F.2d 512, 516-17 (4th Cir. 1979), cert. denied, 446 U.S. 908 (1980) (placing "little weight" upon the lack of cross-examination since "[t]he defendant . . . was the one precluded from questioning the witness at the Grand Jury, not the government."); Jones v. State, 843 S.W.2d 487, 491 (Tex. Ct. Crim. App. 1992).

However, other jurisdictions conduct a more comprehensive inquiry which often results in barring introduction of the testimony. See United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993); Commonwealth v. Martinez, 425 N.E.2d 300 (Mass. 1981). The Second Circuit reasoned that "the motive to develop grand jury testimony that disputes a position already taken by the prosecutor is not necessarily the same as the motive the government would have if that same testimony was presented at trial." United States v. DiNapoli, 8 F.3d 909, 913 (2d Cir. 1993). Other factors considered in finding the prosecution's examination insufficient are the lower burden of proof and the small value of redundant evidence before a Grand Jury. In addition, many courts have considered the distinction between direct examination and cross-examination sufficient to preclude admission. See Commonwealth v. Martinez, 425 N.E.2d at 303.

Special thanks to Prof. Stephen P. Garvey, Cornell Law School, for his assistance in the preparation of this commentary.

Prepared By:

  • Rene M. Devlin, '97
  • Christopher M. Dube, '98
  • Denise A. Johnson, '98
  • Kelly M. Mann, '98
  • Rafael E. Morell, '98
  • Anne R. Myers, '97
  • Jason A. Shrensky, '98