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Grand Jury Proceedings: Court May Order A Witness To Give Testimony A Second Time Where Previous Testimony Was Unsworn.


Criminal Appeals Lawyer Grand jury Proceedings

People v. Wisdom

2014 NY Slip Op 04040

New York Court Of Appeals

Decided on June 5, 2014

Grand Jury Proceedings: Court May Order A Witness To Give Testimony A Second Time Where Previous Testimony Was Unsworn.

See Also: Notes From The Jury Deliberations: New York’s Highest Court Speaks Out On How They Should Be Handled

Summary: Defendant Sidney Wisdom was indicted on attempted murder of a 4-year old girl and her grandmother during a burglary. Prior to trial, the people obtained a court order to videotape the Grandmother’s testimony for later presentation to a grand jury explaining her injuries. The grandmother was not administered an oath to tell the truth when she testified before the grand jury, and was not realized by the prosecutor until after the grand jury had viewed the video. The court authorized a second recorded examination in which the grandmother swore to be truthful. She stated that her prior testimony was accurate and the grand jury was shown the second video.

Defendant was indicted for first-degree burglary and attempted second-degree murder. Defendant moved to dismiss the indictment and stated that the grandmother was required to take an oath during her original interview and that the unsworn testimony compromised the integrity of the grand jury. The Court Of Appeals held that retaking of her testimony under oath did not compromise the integrity of the grand jury because the People sought to correct this by securing judicial permission to record a second interview. The Defendant did not establish a possibility of dismissing the indictment.

Issue: Whether or not the integrity of the grand jury was compromised when a witness gave unsworn videotaped testimony, and than later gave a sworn videotaped testimony where Defendant was subsequently indicted.

Holding: The Court Of Appeals held, that the witness’s unsworn testimony did not impair the grand jury and deliberately cause unfairness to Defendant. Rather, it was an oversight that the People sought to correct by securing judicial permission to record a second interview in which the witness swore to be honest. That error does not meet the “very precise and very high” statutory standard of impairment for grand jury proceedings.

Facts: Defendant Sidney Wisdom was indicted for attempted murder of a four year old and her grandmother Jane during a burglary. Prior to trial, the People obtained a court order to videotape her testimony due to the severity of her injuries. During her videotape examination she was not administered an oath to tell the truth. The Prosecution realized after the grand jury had viewed the video. In an attempt to rectify the situation, the court authorized a second recorded examination of Jane’s testimony in which she swore to be truthful and declared that her prior testimony had been accurate.

The grand jury watched the second video and subsequently indicted Defendant for various crimes, including first-degree burglary and attempted second-degree-murder. Defendant moved to dismiss the indictment, stating that the required unsworn testimony compromised the integrity of the grand jury. The Appellate Division held that the grand jury proceeding was defective Under CPL §190.32 5 (E), ‘if the witness will give sworn testimony, the administration of the oath must be recorded. If the witness will give unsworn testimony, a statement that the testimony is not under oath must be recorded.’

The Appellate Division held that the People presented the unsworn recorded testimony; the second videotape did not cure the error of that testimony. The Appellate Division granted leave to appeal. The Court Of Appeals held that the People sought to correct the omission by securing judicial permission to record a second interview because the witness had not taken an oath during her first recording, and, that error does not meet the “very precise and very high” statutory standard of impairment for grand jury proceedings. The Court Of Appeals reversed.

Legal Analysis: The Court of Appeals held that unsworn testimony did not impair the integrity of the grand jury; rather, the grand jury watched the second video and was instructed by the Judge that the recording was made because the witness had not taken and oath during the first one. This did not cause Defendant a possible prejudice justifying the remedy of a dismissing the indictment, nor did the error meet the statutory standard of impairment for grand jury proceedings. The People sought to correct the omission by securing judicial permission to record a second interview because the witness had not taken an oath during her first recording, and, that error does not meet the “very precise and very high” statutory standard of impairment for grand jury proceedings. The Court Of Appeals reversed to Appellate Division for consideration of facts.


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