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People v. Johnson, 1999 N.Y. Int. 0062 (May 4, 1999).




Whether a hearing on the grounds for admitting Grand Jury testimony by a witness unwilling to testify a trial is required.


Yes. Where the evidence of witness tampering is not clear and convincing a hearing must be held.


William W. Johnson, then the 52-year-old pastor of Calvary Baptist Church in Ithaca, was arrested in 1994 and subsequently convicted of second degree rape, sodomy and endangering the welfare of a child stemming from a sexual relationship with a 13-year-old parishioner. The complaint was brought by the minor's mother when she learned her daughter was pregnant.

Although the victim testified against Johnson before the Grand Jury, she refused at trial to answer any questions, repeatedly responding "I have nothing to say." When asked why she would not testify, the girl said "because I choose not to." Tompkins County Court Judge Sherman granted the district attorney's motion to receive the victim's Grand Jury testimony into direct evidence, stating that "such testimony is allowed upon the theory that, by his misconduct in inducing such unlawful refusal to testify, the defendant has waived his Sixth Amendment right to confrontation of witnesses, thereby allowing the admission of testimony for which there was no contemporaneous opportunity for cross examination."

A divided Appellate Division, Third Department, reversed the judgment of County Court and ordered a new trial, stating that the trial judge should have held a hearing to determine whether the Grand Jury testimony was admissible. "We cannot let this conviction stand, resting as it does principally on crucial testimony that was improperly admitted," the Appellate Division said. The appellate court also said that the minor had resisted cooperating with police before Johnson knew he was the target of an investigation, thus undermining the prosecution's argument that Johnson's interference was the cause of the girl's unresponsiveness at trial. However, Justice Peters, one of the two dissenting justices, said of Johnson: "His admonishment to her, that only her words could send him to jail, silenced this child as surely as if he had cut off her tongue."

The district attorney asked the Court of Appeals to reverse the order of the Appellate Division, arguing, among other things, that the prosecution had demonstrated with clear and convincing evidence that Johnson had persuaded the girl not to testify against him.

The Court of Appeals, however, affirmed. It held that the high value placed on the constitutional right to confront witnesses would be undercut hearings were excused when the evidence of witness tampering in issue is subject to competing inferences.