New York Law Review

Tag: Evasive Testimony

  • People v. Fischer, 53 N.Y.2d 614 (1981): Criminal Contempt Based on Evasive Testimony

    People v. Fischer, 53 N.Y.2d 614 (1981)

    A witness can be found guilty of criminal contempt for providing false and evasive answers, even if they do not outright refuse to answer questions.

    Summary

    The New York Court of Appeals affirmed the defendant’s convictions for criminal contempt and perjury. The Court held that the defendant’s repeated professions of memory loss and denials regarding payments, in light of entries in his “black book” and testimony from his bookkeeper, constituted evasive and perjurious testimony. The Court found sufficient evidence for the jury to conclude that the defendant’s testimony before the grand jury was intentionally false and evasive, thereby obstructing the investigation and warranting a contempt conviction. The court found that the evidence presented was sufficient to prove both criminal contempt and perjury.

    Facts

    The defendant, Fischer, was convicted of criminal contempt and perjury based on his testimony before a grand jury. Key evidence included cryptic entries in Fischer’s “black book” and testimony from his bookkeeper regarding overheard conversations about payments to a union official. Fischer repeatedly responded with “I don’t remember,” “I don’t recall,” and “I don’t know” when questioned about the entries and denied making specific payments.

    Procedural History

    The case originated in a trial court where Fischer was convicted of criminal contempt and perjury. The Appellate Division affirmed the trial court’s decision, upholding the convictions. Fischer then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether Fischer’s repeated professions of memory loss and denials of knowledge constituted evasive testimony sufficient to support a conviction for criminal contempt.
    2. Whether there was sufficient evidence, including the black book entries and the bookkeeper’s testimony, to support the perjury conviction.

    Holding

    1. Yes, because the jury was warranted in finding that the cryptic entries in the defendant’s black book were made in circumstances so memorable as to render his protestations of no recollection incredible and thus evasive.
    2. Yes, because the entries in the defendant’s black book, combined with his testimony and the bookkeeper’s testimony, provided sufficient evidence that the defendant committed perjury.

    Court’s Reasoning

    The Court of Appeals reasoned that Fischer’s repeated claims of memory loss, when considered in the context of the entries in his black book, were so implausible as to be evasive and obstructive, supporting the criminal contempt conviction. The court cited People v. Ianniello, 36 NY2d 137, 142, stating, “To be guilty of contempt the witness need not flatly refuse to answer the questions put to him; false and evasive profession of an inability to recall, which amounts to no answer at all, is punishable as criminal contempt.” The Court found that the defendant’s repeated responses of “I don’t remember”, “I don’t recall”, and “I don’t know”, together with his reiterated statements that the moneys went to no one specifically, were sufficient to sustain the finding of contemptuous evasion.

    Regarding the perjury conviction, the Court found that the entries in the black book, Fischer’s testimony regarding them, and the bookkeeper’s testimony about overheard conversations collectively established that Fischer lied under oath about making payments to a union official. Each piece of evidence corroborated the others, satisfying the corroboration requirement for perjury convictions under Penal Law § 210.50.

    The court also addressed the admissibility of extended portions of Fischer’s grand jury testimony, finding that the trial court did not abuse its discretion in admitting this evidence, even after the dismissal of one count of criminal contempt. The court referenced People v McGrath, 46 NY2d 12, 32.

  • People v. Marin, 51 N.Y.2d 750 (1980): Criminal Contempt for Evasive Grand Jury Testimony

    People v. Marin, 51 N.Y.2d 750 (1980)

    A witness commits criminal contempt when, during grand jury testimony, they offer general denials followed by professions of an inability to recall events which would have left an impression, amounting to an evasive refusal to answer.

    Summary

    Marin, Superintendent of a State Department of Correctional Services facility, was convicted of criminal contempt for evasive testimony before a grand jury investigating the misuse of state employees. The grand jury questioned Marin about allegations that he used state employees to repair his roof during work hours, using state materials. Although Marin gave some seemingly direct answers, his testimony, taken as a whole, was evasive and demonstrated an inability to recall significant events. The New York Court of Appeals held that Marin’s testimony amounted to a refusal to answer, thus upholding the contempt conviction.

    Facts

    The Queens County Grand Jury investigated misconduct allegations against employees of the New York State Department of Correctional Services’ Centralized Services Facility. Marin, the Superintendent, testified under a waiver of immunity regarding claims he used state employees to repair his home roof during work hours in 1977, with state materials. Marin initially stated he had not seen any men on his roof during the work week. However, his subsequent testimony revealed uncertainty and a professed inability to recall specific events, despite acknowledging the significance of the allegations.

    Procedural History

    Marin was charged with contempt, perjury, rewarding official misconduct, and conspiracy. Following a jury trial, he was convicted of two counts of contempt and acquitted of perjury. He pleaded guilty to rewarding official misconduct. The Appellate Division reversed the contempt convictions and vacated the plea. The People appealed, conceding insufficient evidence for the second contempt count but seeking reinstatement of the first.

    Issue(s)

    Whether Marin’s grand jury testimony, characterized by general denials and professed inability to recall significant events, constituted a refusal to answer legal and proper interrogatories, thereby supporting a conviction for criminal contempt in the first degree.

    Holding

    Yes, because Marin’s testimony, when viewed in its totality, was evasive and demonstrated a calculated inability to recall events that he would have remembered, which is equivalent to a refusal to answer.

    Court’s Reasoning

    The Court of Appeals distinguished between explicit, credible testimony and evasive responses. While a straightforward denial might not constitute contempt, “the false and evasive profession of an inability to recall events or details which were significant and therefore memorable is punishable as criminal contempt.” The court emphasized that Marin’s initial denial was undermined by his subsequent hedging and professed lack of memory. The court highlighted Marin’s concern about the legality of using state workers and his testimony that he would have remembered them working on his house during work hours. The court noted: “[A] general denial followed by professions of an inability to recall particular events which would have left an impression on the defendant had they occurred is the equivalent of a failure to answer.” The court found Marin’s testimony was “equivocal, couched as they were in terms of his inability to remember the events and details which were the subject of the Grand Jury’s questions.” Because Marin’s testimony was evasive and demonstrated an unwillingness to provide clear answers about memorable events, the court found sufficient evidence to support the criminal contempt conviction.

  • People v. Fischer, 53 N.Y.2d 178 (1981): Criminal Contempt and Evasive Testimony Before a Grand Jury

    53 N.Y.2d 178 (1981)

    To sustain a conviction for criminal contempt based on evasive answers before a grand jury, the prosecution does not need to prove that the underlying event or conversation referenced in the questions actually occurred.

    Summary

    Defendant, an attorney, was convicted of criminal contempt for giving evasive answers to a grand jury investigating misconduct. Specifically, he repeatedly claimed he didn’t recall a conversation with another attorney, Abe Brown, about a potential bribe. The New York Court of Appeals affirmed the conviction, holding that the prosecution wasn’t required to prove the alleged conversation with Brown actually occurred. The critical issue was whether the defendant intentionally evaded answering the questions, not whether the underlying facts were true. The court reasoned that evasive contempt hinges on the intent to avoid answering, regardless of the truth of the matter being investigated.

    Facts

    The defendant, a practicing attorney, appeared before a grand jury investigating possible misconduct by Abram Brown, a law assistant. The defendant was asked if Brown had told him that another law assistant, identified as Brown’s cousin, expected a payment from the defendant in return for a favorable decision for the defendant’s client. The defendant repeatedly responded that he did not recall the conversation or statement.

    Procedural History

    The defendant was charged with six counts of criminal contempt. His first trial ended in a mistrial. At the second trial, he was acquitted of two counts, but the jury deadlocked on the remaining four. At the third trial, one count was dismissed, he was acquitted on two counts, and the jury found him guilty on one count. The Appellate Division affirmed the conviction. The New York Court of Appeals granted permission to appeal.

    Issue(s)

    Whether the prosecution must prove that the event, conversation, or other fact referred to in the grand jury questions actually occurred to sustain a conviction for criminal contempt based on evasive answers.

    Holding

    No, because the essence of criminal contempt based on evasive testimony is whether the defendant intended to avoid answering the question, not whether the underlying facts are true or false.

    Court’s Reasoning

    The court distinguished between the “happening” of an event and the “telling” about it. The questions focused on whether Abe Brown made a statement to the defendant, not on the underlying transaction itself. Therefore, the prosecution did not need to prove the underlying event occurred. The court stated that conviction for “evasive contempt” must be based on a determination that there was a refusal to answer a material question before the Grand Jury. The essence of the conviction is that the jury finds beyond a reasonable doubt that the defendant’s response was intended as no answer at all and was thus tantamount to a refusal to answer. The court emphasized, “It is not the content of the answer on which a conviction for contempt can be based; it is that in the circumstances in which the question is asked and the response given, whatever may be the normal denotation of the words spoken, the jury is warranted in concluding, as it did in this case, that the words were spoken with intent to evade making an answer.” The court rejected the defendant’s argument that the trial court erred by refusing to charge the jury that the prosecution had to prove the underlying event occurred. The court stated that such a charge would have improperly led the jury into consideration of a collateral and extraneous issue of fact, and might inadvertently have led them to an unwarranted verdict on the contempt charge based on their evaluation of the truth or falsity of defendant’s answers.

  • People v. Fischer, 47 N.Y.2d 1049 (1979): Sufficiency of Initial Warnings for Evasive Contempt Before a Grand Jury

    People v. Fischer, 47 N.Y.2d 1049 (1979)

    A Grand Jury witness who has been granted immunity and warned about evasive contempt need not be contemporaneously warned that their answers are evasive to be charged with criminal contempt, provided the initial warnings were adequate.

    Summary

    The case addresses whether a Grand Jury witness, granted immunity and warned about evasive contempt, requires subsequent real-time warnings during testimony to be charged with criminal contempt for evasive answers. The New York Court of Appeals held that contemporaneous warnings are not required if the initial warnings adequately informed the witness of their immunity and potential liability for perjury or evasive responses. The court emphasized that fundamental fairness requires informing the witness of their immunity but rejected a rule mandating repeated warnings during the testimony, provided the initial warning was sufficient and the questioning did not constitute a ‘contempt trap’.

    Facts

    Fischer, an auctioneer involved in selling property related to a matrimonial action, testified before a Grand Jury investigating corruption allegations within that action. He was granted immunity but warned about potential perjury or contempt charges for false or evasive answers. During his first appearance, the District Attorney explained the nature of the investigation and potential penalties for perjury or contempt, specifically defining evasive contempt. In a subsequent appearance, Fischer was questioned about a conversation concerning a judge’s relationship with a party in the matrimonial action. Finally, he was asked whether he had mentioned a kickback scheme involving the referee in the matrimonial action, to which he responded vaguely, claiming he couldn’t recall. He was subsequently indicted for criminal contempt for giving evasive answers.

    Procedural History

    The Supreme Court, New York County, dismissed the indictment, relying on a case requiring contemporaneous warnings for evasive contempt. The Appellate Division, First Department, reversed, holding that the prior warnings and repeated questioning sufficiently apprised Fischer of his vulnerability to a contempt charge. Fischer appealed to the New York Court of Appeals.

    Issue(s)

    Whether a Grand Jury witness, granted immunity and initially warned about potential contempt for evasive answers, must receive contemporaneous warnings during their testimony to be charged with criminal contempt for those evasive answers.

    Holding

    No, because the initial warnings regarding immunity and the consequences of evasive answers were sufficient to put the witness on notice of potential criminal liability, and the prosecutor’s questioning did not constitute a “contempt trap”.

    Court’s Reasoning

    The Court of Appeals held that fundamental fairness requires informing a Grand Jury witness of the extent of their immunity. However, it rejected the requirement of contemporaneous warnings for evasive contempt, distinguishing it from the requirements of summary contempt proceedings. The court emphasized that the initial warnings, coupled with the repeated questioning, were sufficient to inform Fischer of his potential liability. The court distinguished the case from scenarios where the prosecutor attempts to trap the witness. Here, the prosecutor carefully reframed and repeated the questions. The court referenced People v. Ianniello, noting that a contempt conviction was upheld even when the defendant was never brought before the court and directed to give a more responsive answer. The court stated that the witness should be informed that they will not be immune from prosecution for perjury if they lie, or for contempt if they refuse to answer or give evasive replies, but the prosecutor isn’t required to repeat the admonition every time the witness’ testimony becomes vague or evasive.

  • Anonymous v. Andrews, 36 N.Y.2d 270 (1975): Evasive Testimony and the Privilege Against Self-Incrimination

    Anonymous v. Andrews, 36 N.Y.2d 270 (1975)

    Testimony coerced from a public employee by threat of job forfeiture can be used in a civil contempt proceeding for acts committed during the testimony, such as giving evasive answers, even if it cannot be used in a criminal prosecution for past crimes.

    Summary

    Two New York City policemen, subpoenaed to testify about police memo book entries, claimed they couldn’t remember the circumstances of the entries, despite acknowledging their handwriting. The Commissioner of Investigation sought to have them jailed for contempt. The Court of Appeals held that their responses were evasive and equivalent to refusing to answer. It further held that the officers’ testimony, though compelled under threat of job loss, could be used in a contempt proceeding for their evasiveness, distinguishing it from using such testimony in a criminal prosecution for prior wrongdoing.

    Facts

    Appellants, New York City policemen, were subpoenaed to testify before the Commissioner of Investigation regarding entries in police memo books. They were informed of their right to counsel and privilege against self-incrimination, but also that refusing to answer questions related to their duties would result in dismissal. They identified entries as their own, but claimed they could not remember the circumstances or purpose of the entries. The memo book form was relatively new, having been introduced in 1968. The investigator believed the entries were part of a common scheme among officers.

    Procedural History

    The Commissioner moved for an order committing the appellants to jail for contempt. Special Term denied the motion, quashing the subpoenas, arguing the Commissioner lacked authority to grant immunity and thus could not compel testimony. The Appellate Division reversed, granting the petition for commitment, finding the responses evasive and a de facto refusal to answer without claiming privilege. The case then went to the New York Court of Appeals.

    Issue(s)

    1. Were the responses given by the appellants so evasive as to amount to a refusal to answer a legal and pertinent question?
    2. If the responses were equivalent to a refusal to answer, can those responses be the basis for a contempt proceeding against appellants, given that the testimony was compelled under threat of job loss?

    Holding

    1. Yes, because the appellants did not make bona fide efforts to answer the questions put to them and, consequently, refused to answer legal and pertinent questions without reasonable cause.
    2. Yes, because the exclusionary rule, designed to alleviate the adverse effects of unconstitutional coercion, does not bar the use of such compelled testimony in a contempt proceeding.

    Court’s Reasoning

    The court determined the officers’ memory lapse regarding the memo book entries was incredible and obstructive to the investigation, especially given the relatively recent introduction of the form and the likely existence of a common scheme. Quoting United States v. Appel, the court stated, “If the witness’ conduct shows beyond any doubt whatever that he is refusing to tell what he knows, he is in contempt of court.”

    Distinguishing Garrity v. New Jersey, the court explained that Garrity addressed the use of compelled testimony in criminal prosecutions for crimes committed prior to the testimony. The present case concerned a contempt proceeding for acts (evasive answers) committed during the testimony. The court emphasized the general rule that statutory immunity doesn’t bar the use of compelled testimony in subsequent contempt proceedings.

    The court cited Wigmore: “the perjured utterance [or the utterance which amounts to a refusal to answer] is not ‘evidence’ or ‘testimony’ to a crime but is the very act of crime itself.” The court relied on People v. Tomasello and People v. Ianniello, which held that the exclusionary rule doesn’t prevent a defendant from being convicted of perjury or held in contempt based on grand jury testimony. The court reasoned that the exclusionary rules, like those in People v. Steuding and Garrity, aim to prevent coercion, but they do not shield a witness from the consequences of committing a new wrong (like contempt) while testifying.

  • People v. Ianniello, 21 N.Y.2d 418 (1968): Grand Jury Witness’s Right to Counsel

    People v. Ianniello, 21 N.Y.2d 418 (1968)

    A grand jury witness has a right to consult with counsel outside the grand jury room concerning legal rights, but the denial of that right does not give the witness a license to commit perjury or contempt; instead, the witness must persist in refusing to answer, forcing the prosecutor to seek a court ruling.

    Summary

    Ianniello, a bar owner, was indicted for criminal contempt based on allegedly evasive answers to grand jury questions during an investigation into bribery. He was denied permission to consult with his lawyer during questioning. The trial court dismissed the indictment, arguing denial of counsel. The appellate court affirmed, reasoning that Ianniello was a target of the investigation and thus immune. The Court of Appeals reversed, holding that evasive testimony can be prosecuted as contempt, even if the witness is a potential defendant, and that while a grand jury witness has a right to consult with counsel about legal rights, Ianniello’s request was a strategic delay tactic, and thus his contempt charges are valid.

    Facts

    Ianniello, owner of two bars, was called before a grand jury investigating a bribery conspiracy involving police and officials of the State Liquor Authority. He initially refused to be sworn in, citing a pending misdemeanor case. He was assured he was called solely as a witness and offered immunity. He was questioned about conversations with Benny Cohen regarding police payoffs. When he claimed he could not recall these conversations, the prosecutor reminded him of the immunity and his obligation to be truthful. Ianniello asked to consult his attorney to determine if the question was “proper.” This request was denied. He continued to claim he did not recall the conversations. Later, he was questioned about a meeting with Sergeant O’Shea and again claimed he did not recall the conversation. He also claimed he couldn’t recall if anyone had told him to stay away from Sergeant O’Shea or if he had entertained police officers at his farm.

    Procedural History

    The Grand Jury indicted Ianniello for criminal contempt. The Supreme Court, New York County, dismissed the indictment. The Appellate Division affirmed the dismissal. The New York Court of Appeals reversed the Appellate Division’s order and reinstated the indictment.

    Issue(s)

    1. Whether a grand jury witness who is a potential defendant or target of investigation can be prosecuted for contempt based on evasive testimony.
    2. Whether a grand jury witness has a right to consult with counsel during questioning, and if so, under what circumstances.

    Holding

    1. Yes, because the witness still has the benefit of an exclusionary rule preventing the use of compelled testimony or its fruits in a prosecution for a previously committed substantive crime.
    2. Yes, but only when the witness requests counsel concerning legal rights, not for strategic advice. In this case, the denial was not improper because the witness’s request was a strategic delay tactic.

    Court’s Reasoning

    The Court of Appeals reasoned that the rule against prosecuting a target witness for contempt was undermined by People v. Tomasello, which held that a witness could be prosecuted for perjury even if a target. The Court stated that a witness cannot have a “license to commit perjury.” The “use” of testimony to establish contempt is different than using it to establish a prior offense. Even if Ianniello was a target, he could be punished for evasive testimony. Regarding the right to counsel, the court acknowledged that a witness has no right to have counsel present in the grand jury room, but the court then addressed the question of whether a witness has the right to leave the room to consult with counsel. The court stated that while a grand jury proceeding is an investigation, not a prosecution, counsel is important to provide notice of rights. The court has a responsibility to prevent unfairness in grand jury proceedings, because the grand jury is an “arm of the court.” A witness may need counsel to determine whether to assert their privilege against self-incrimination, whether a question is relevant to the investigation, or whether a testimonial privilege applies. However, the court emphasized that a witness cannot commit perjury or contempt if their right to counsel is denied; they must persist in refusing to answer, forcing the prosecutor to seek a court ruling. The court found that Ianniello’s request for counsel was not made in good faith because it was limited to whether the question was “proper” and the relevance of the question was not in doubt. Further, he never requested advice on testimonial privileges or self-incrimination, and he had been repeatedly told he was being given immunity. Finally, the court noted that three of the contempt counts were based on testimony given after a week’s recess, during which Ianniello had the opportunity to consult with counsel. The court concluded that Ianniello’s answers “could be found evasive by a jury” and thus he could be held in contempt because his answers were “so false and evasive as to be equivalent to no answer at all.”