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Sixth Amendment Confrontation Rights Not Violated Where Defendant Procures Witness’s Absence At Trial


Criminal Appeals lawyer, sixth amendment confrontation clause,

People v. Smart

New York Court of Appeals

23 N.Y.3d 213

Decided on: May 1, 2014

Sixth Amendment Confrontation Clause Not Violated Where Defendant’s Coercive Behavior Caused Unavailability Of Witness At Trial

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer 

Issue: whether the trial court violated the Sixth Amendment Confrontation Clause when it allowed grand jury testimony of a witness to be read before the petit jury where defendant, using threats and intimidation, was responsible for the witness’s refusal to testify at trial.

Summary: Defendant, his associate and his girlfriend were arrested for burglary. Defendant’s girlfriend, Doe cooperated with the authorities and testified before the grand jury. At trial, the People sought permission to admit Doe’s grand jury testimony into evidence, alleging that Defendant had forfeited his right to preclude the admission of that testimony with threats. County Court held a Sirois hearing to determine the admissibility of the testimony.

At the hearing, the People put into evidence recordings of Defendant’s jailhouse telephone conversations, which showed that, on the day on which the investigators started searching for Doe, Defendant called her, and inquired as to whether she would testify against him at trial. When she suggested that she would do so, Defendant made vicious threats.

At the hearing, Doe’s attorney appeared in court. According to Doe’s attorney, she had told him that she would assert her Fifth Amendment privilege against self-incrimination and refused to testify at Defendant’s trial. County Court granted the People’s motion to admit Doe’s grand jury’s testimony into evidence at trial and the jury returned a verdict, convicting Defendant as charged.

The Appellate Division affirmed the conviction but modified the sentence by reducing Defendants sentence and the Court of Appeals granted Defendant leave to appeal and affirmed.

See Also: U.S.S.G.§ 3582(C)(2) Sentence Reduction: The District Court May Hold An Evidentiary Hearing To Determine Whether A Sentence Should Be Reduced

Holding: The Court of Appeals held that the trial court did not abuse its discretion when the People presented clear and convincing evidence that Defendant’s coercive behavior caused the witness not to testify at trial.

The Confrontation right is critical to the fairness of a trial because it ensures the reliability of the evidence against a criminal Defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.

However, where it has been shown that the Defendant procured the witness’s unavailability through violence, threats or chicanery, the Defendant may not assert either the Constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to prevent the admission of the witness’s out-of-court declarations, including the witness’s grand jury testimony.

Facts: Defendant, his associate and his girlfriend were arrested for burglary. Defendant’s girlfriend, ”Doe” cooperated with the authorities and testified before the grand jury, conveying the account of the burglary. In County Court, the People sought permission to admit Doe’s grand jury testimony into evidence, alleging that Defendant had forfeited his right to preclude the admission of that testimony by tampering with Doe. County Court held a Sirois hearing to determine the admissibility of the testimony.

The People put into evidence recordings of Defendant’s jailhouse telephone conversations, which had occurred between Doe’s disappearance and the hearing. The recordings showed that, on the day on which the investigators started searching for Doe, Defendant called her and inquired as to whether she would testify against him at trial. When she suggested that she would do so, Defendant made vicious threats. Defendant also had recorded conversations with his mother, which revealed that his mother was watching over Doe at his behest.

On the morning of the second day of hearing, Defense counsel announced that Doe was once again in police custody and asserted that Doe was now available to testify at trial and that therefore her gran jury testimony could not be used against Defendant. County Court continued the Sirois hearing and held that if the People find by clear and convincing evidence that Doe still refuses to testify, they will deal with it at that time

Later at the hearing, Doe’s attorney appeared in court. According to Doe’s attorney., she had told him that she would assert her Fifth Amendment privilege against self-incrimination and refused to testify at Defendant’s trial. After hearing extensive argument from the parties regarding whether the People had proved that Defendant had wrongfully procured Doe’s unavailability by coercing her into invoking her Fifth Amendment privilege, the court granted the People’s motion to admit Doe’s grand jury’s testimony into evidence at trial. At trial, the People submitted Doe’s grand jury testimony and the jury returned a verdict, convicting Defendant as charged.

Defendant filed a motion to set aside the verdict pursuant to CPL §330.30, renewing his argument that the court had erroneously admitted Doe’s grand jury testimony into evidence because Doe had evidently refused to testify to avoid incriminating herself and not in response to Defendant’s misdeeds. The Appellate Division modified the judgment by reducing Defendants sentence. The Court of Appeals granted Defendant leave to appeal.

The Court of Appeals held that where it has been shown that the Defendant procured the witness’s unavailability through violence, threats or chicanery, the Defendant may not assert either the Constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to prevent the admission of the witness’s out-of-court declarations, including the witness’s grand jury testimony. The Court of Appeals affirmed the Appellate Division’s order.

Legal Analysis: The Court of Appeals held that under the Sixth Amendment of the Federal Constitution and Article I, § 6 of the State Constitution, a criminal Defendant has the right to be confronted with the witnesses against him or her.

The confrontation right is critical to the fairness of a trial because it ensures the reliability of the evidence against a criminal Defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. People v. Wrotten, 14 N.Y.3d 33, 39, 896 N.Y.2d 711, 923 N.E.2s 1099 2009.

Given this important right, an unavailable witness’s grand jury testimony, generally may not be admitted at trial on the Peoples direct case. However, where it has been shown that the Defendant procured the witness’s unavailability through violence, threats or chicanery, the Defendant may not assert either the constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to witness’s grand jury testimony.

This forfeiture rule is based on sound public policy meant to prevent a Defendant from taking advantage of his or her own wrongdoing and to protect the integrity of the proceedings by deterring the Defendant from acting on the strong incentive to tamper with adverse witnesses.

The Court of Appeals held that the People may not admit a witness’s grand jury testimony into evidence merely because the Defendant expressed hope that the witness would not testify against him or her a trial. Rather, the People must demonstrate by clear and convincing evidence that the Defendant engaged in misconduct aimed at least in part at preventing the witness from testifying and that those misdeeds were a significant cause of the witness’s decision not to testify.

The Court of Appeals held that at a hearing pursuant to Sirois and Geraci, the court may infer the requisite causation from the evidence of the Defendant’s coercive behavior and the actions taken by the witness in direct response to or within a close temporal proximity to that misconduct. Thus, requiring the People to allege facts demonstrating only a distinct possibility that Defendant’s misconduct caused a witness not to testify to obtain a hearing and permitting admission of grand jury testimony upon proof of misconduct and the absence of the witness in a manner suggestive of causation. People v. Encarnacion, 87, A.D.3d 81, 85-89, 936 N.Y.S.2s 446 1st Dep.2011.

In this case, the Court of Appeals held that the People proved by clear and convincing evidence that Defendant committed misconduct, and the court drew a permissible record-based inference that Defendant’s wrongful actions were designed to prevent the witness from testifying at trial. The witness initially indicated to Defendant that she might testify, and in response, Defendant threatened to “wring her neck.” By threatening, the witness with violence in response to her avowed willingness to testify, the Court of Appeals held that Defendant obviously sought to prevent her from testifying at trial and the Appellate Division properly concluded that Defendant procured the witness’s unavailability in the period leading up to the Sirois hearing.

On the first day of the hearing, the People presented compelling evidence of Defendant’s attempts to keep the witness from appearing in court, creating the strong possibility that the witness’s grand jury testimony would be admitted against him on forfeiture-by-wrongdoing grounds.

The Court of Appeals held that, given that the existing evidence sufficed to demonstrate that Defendant’s chicanery caused the witness’s unavailability at trial, the People were not obligated to call her to the stand to establish the admissibility of her grand jury testimony. The Court rejected Defendant’s contention that the witness’s grand jury testimony should have been excluded because she had lawful basis for asserting her Fifth Amendment privilege. Accordingly, the order of the Appellate Division should be affirmed.


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