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
] | [ISSUE & DISPOSITION
| [AUTHORITIES CITED
] | [COMMENTARY
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
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.
Yes. The Grand Jury testimony was sufficiently reliable under these circumstances
to merit its admission at trial.
Cases Cited by the Court
448 U.S. 56 (1980).
v. Mississippi, 410 U.S. 284 (1973).
v. Texas, 388 U.S. 14 (1967).
Rosario v. Kuhlman, 839 F.2d 918 (2d Cir. 1988).
Huston, 88 N.Y.2d 400 (N.Y. 1996).
Geraci, 85 N.Y.2d 359 (N.Y. 1995).
Green, 78 N.Y.2d 1029 (N.Y. 1991).
People v. Lancaster, 69 N.Y.2d 20 (N.Y. 1986), cert. denied,
480 U.S. 922 (1987).
People v. Gonzalez, 54 N.Y.2d 729 (N.Y. 1981).
People v. Harding, 37 N.Y.2d 130 (N.Y. 1975).
Other Sources Cited by the Court
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).
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).
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.
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.
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