New York Law Review

Tag: Unavailable Witness

  • People v. Diaz, 97 N.Y.2d 109 (2001): Standard for Admitting Prior Trial Testimony When Witness is Unavailable

    97 N.Y.2d 109 (2001)

    When seeking to admit a witness’s prior trial testimony under CPL 670.10 because the witness is outside the state, the prosecution must demonstrate due diligence in attempting to secure the witness’s presence, including communicating with the witness in a language they understand.

    Summary

    Carlos Diaz was convicted of robbery after the trial court admitted the prior trial testimony of the victim, Oscar Leal, who had moved to Mexico. Leal, who testified with the aid of a Spanish interpreter in previous trials, was contacted by phone in English and asked to return for the fourth trial. He refused. The New York Court of Appeals reversed Diaz’s conviction, holding that the prosecution failed to exercise due diligence in securing Leal’s presence because they did not communicate with him in a language he fully understood, given his reliance on a Spanish interpreter at prior trials and the importance of his live testimony after two prior hung juries.

    Facts

    Oscar Leal was robbed. He identified Carlos Diaz as the robber. Diaz was arrested with Leal’s watch and $20. Leal testified against Diaz in three trials, all of which resulted in mistrials (two due to hung juries). Leal used a Spanish interpreter at these trials. Immediately after the third trial, Leal, a Mexican national, moved back to Mexico. The prosecution sought Leal’s presence for a fourth trial. They contacted him in Mexico via telephone and asked him to return to New York. The communications were conducted in English. Leal refused to return.

    Procedural History

    Following three mistrials, the People moved to admit Leal’s prior testimony at a fourth trial, arguing Leal was unavailable. The trial court granted the motion, finding due diligence. Diaz was convicted. The Appellate Division affirmed. One Appellate Division Justice dissented, granting leave to appeal to the New York Court of Appeals. The Court of Appeals reversed the conviction and ordered a new trial.

    Issue(s)

    Whether the prosecution exercised due diligence, as required by CPL 670.10, in attempting to secure the presence of a witness who resided outside the state, when the communications to secure the witness’s attendance were conducted in a language the witness did not fully understand.

    Holding

    No, because under CPL 670.10, due diligence requires that the prosecution communicate with a witness in a language the witness fully understands when attempting to secure their presence at trial, especially when the witness has previously required an interpreter and their live testimony is crucial.

    Court’s Reasoning

    The Court of Appeals emphasized that CPL 670.10 is a limited exception to the Sixth Amendment right of confrontation. To prevent this exception from swallowing the rule, the prosecution must demonstrate genuine effort, not indifference, in securing the witness’s live testimony. The court highlighted the significance of Leal’s demeanor to the jury, especially given the prior hung juries. Because Leal had used a Spanish interpreter at previous trials, the Court reasoned that communicating with him in English was insufficient to demonstrate due diligence. The court noted that the ADA’s statement that Leal “appeared to understand me at some point” was insufficient to establish clear understanding. The court stated: “Using understandable language to get the witness to the trial is as important as using understandable language to question the witness at the trial.” The dissent argued that there was sufficient evidence that Leal had some proficiency in English, and thus the lower court’s finding of due diligence should not be disturbed. The majority countered that it is the *level* of Leal’s comprehension that matters. The Court concluded that a “trial on paper should be conducted only as a last resort” and the prosecution must take reasonable steps to ensure the witness’s presence.

  • People v. Robinson, 89 N.Y.2d 648 (1997): Admissibility of Grand Jury Testimony Under Due Process When Witness is Unavailable

    People v. Robinson, 89 N.Y.2d 648 (1997)

    A defendant’s due process rights may require the admission of a witness’s Grand Jury testimony when that witness is unavailable to testify at trial, the testimony is material and exculpatory, and bears sufficient indicia of reliability, even if such admission is not explicitly authorized by statute.

    Summary

    Robinson was convicted of sexual abuse and misconduct. His defense hinged on the testimony of his then-fiancée, who testified before a grand jury corroborating his version of events. When she became unavailable for trial, Robinson sought to admit her grand jury testimony. The trial court denied the motion, but the Appellate Division reversed, ordering a new trial. The Court of Appeals affirmed, holding that the exclusion of the grand jury testimony violated Robinson’s due process rights because the testimony was material, the witness was unavailable, and the testimony bore sufficient indicia of reliability due to the prosecutor’s probing questioning before the grand jury.

    Facts

    Robinson was accused of sexually abusing the complainant. At trial, the complainant stated that the act was non-consensual. Robinson claimed the sex was consensual and occurred in the presence of his then-fiancée (later his wife). Before the grand jury, Robinson’s fiancée corroborated his account. The grand jury indicted Robinson on some charges, but not on first-degree rape. Prior to trial, Robinson’s wife left the jurisdiction and refused to return to testify despite a court order.

    Procedural History

    The Monroe County Court denied Robinson’s motion to admit his wife’s grand jury testimony. Robinson waived his right to a jury trial and was convicted by the bench. The Appellate Division reversed the conviction and ordered a new trial, finding that the grand jury testimony was sufficiently reliable and material. The People appealed to the Court of Appeals, which affirmed the Appellate Division’s order.

    Issue(s)

    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, and the testimony is material, exculpatory, and possesses sufficient indicia of reliability.

    Holding

    Yes, because under the circumstances of this case, where the hearsay testimony is material, exculpatory and has sufficient indicia of reliability, the trial court’s failure to admit such evidence was reversible error.

    Court’s Reasoning

    The Court acknowledged that CPL 670.10 does not explicitly authorize the admission of grand jury testimony at trial. However, it recognized that a defendant’s right to present a defense is a fundamental element of due process. Citing Chambers v. Mississippi, 410 U.S. 284 (1973), the court emphasized the importance of allowing a defendant to present witnesses in their own defense. The Court found that the testimony was material because the declarant was the only other person with firsthand knowledge of the events. The witness was deemed unavailable despite Robinson’s due diligence. Concerning reliability, the Court noted that while the absence of cross-examination typically impairs the reliability of grand jury testimony, in this case, the prosecutor’s direct examination of the witness served the essential purpose of cross-examination by exploring potential biases and testing the accuracy of her testimony. The Court highlighted that the prosecutor’s questions explored the witness’s relationship with both the complainant and the defendant, and even elicited testimony unfavorable to the defendant. The court found that the prosecutor’s questioning “clearly partook of cross-examination as a matter of form.” Because the erroneous exclusion of the proffered evidence was not harmless beyond a reasonable doubt, the court affirmed the Appellate Division’s order for a new trial. As the Court stated, “[t]he prosecutor explored the long-standing relationship between the witness and the complainant which the complainant corroborated. Similarly, the prosecutor questioned the witness about her relationship with the defendant which revealed any biases which might have affected her credibility.” This demonstrated reliability, allowing the Grand Jury testimony to be admitted.

  • People v. Lesiuk, 81 N.Y.2d 485 (1993): Standard for Dismissal When Informant Unavailable

    81 N.Y.2d 485 (1993)

    When the prosecution fails to produce a confidential informant, the defendant must demonstrate that the informant’s testimony would tend to be exculpatory or create a reasonable doubt as to the reliability of the prosecution’s case to warrant dismissal.

    Summary

    Defendant was convicted of criminal sale of marihuana. A confidential informant, Harvey, involved in the transaction, was unavailable at trial. Defendant moved to set aside the verdict based on Harvey’s affidavit stating defendant did not sell him marihuana. The Appellate Division remitted for a determination of the materiality of Harvey’s testimony, applying a “reasonable probability” standard. After a hearing, the motion was denied, and the Appellate Division affirmed. The Court of Appeals affirmed, holding that the defendant seeking dismissal due to the prosecution’s failure to produce an unavailable informant must show the testimony would be exculpatory or create reasonable doubt.

    Facts

    An undercover officer observed defendant handing a bag of marihuana to informant Harvey in exchange for $1,650. The arrest was delayed due to the officer’s involvement in another investigation and attempts to use Harvey for another transaction with the defendant. The prosecution attempted to locate Harvey for trial but was unsuccessful.

    Procedural History

    Defendant was convicted in County Court. He moved to dismiss the indictment, arguing the delay between the crime and arrest violated due process. He also moved to set aside the verdict based on Harvey’s affidavit. The County Court denied the motions. The Appellate Division withheld decision and remitted to County Court to determine the materiality of Harvey’s testimony. Upon remittal, the County Court denied the motion, and the Appellate Division affirmed. The defendant appealed to the Court of Appeals.

    Issue(s)

    Whether the Appellate Division applied the proper standard in considering whether the testimony of the unavailable informant, had he been produced at trial, would have created a different result in the outcome of the case.

    Holding

    Yes, because when a defendant seeks dismissal of an indictment for the prosecution’s failure to produce a witness unavailable through no intention of the prosecutors, the defendant must demonstrate that the proposed testimony of the informant would tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution’s case.

    Court’s Reasoning

    The Court relied on People v. Jenkins, which established that when a confidential informant is unavailable, the People have a duty to produce them or exert diligent efforts to do so. To compel production or dismissal, the defendant must show the informant’s testimony would be exculpatory or create reasonable doubt. The Court rejected the argument that Harvey’s subsequent statements created reasonable doubt, deferring to the County Court’s assessment of Harvey’s credibility. The Court also addressed the delay between the incident and arrest, finding it justified by ongoing investigations. Quoting People v Singer, the court stated that “a determination made in good faith to defer commencement of the prosecution for further investigation or for other sufficient reasons, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defense.” Finally, the Court found that the trial court’s inquiry into the juror’s unavailability was proper and complied with precedent.

  • Matter of Enright v. People, 58 N.Y.2d 172 (1983): Defining ‘Manifest Necessity’ for Mistrials

    Matter of Enright v. People, 58 N.Y.2d 172 (1983)

    A mistrial may be declared without the defendant’s consent only when there is a “manifest necessity” to protect the defendant’s right to a fair trial or when the ends of public justice would be defeated.

    Summary

    This case addresses the circumstances under which a trial court may declare a mistrial without the defendant’s consent, thereby permitting a retrial without violating double jeopardy protections. The New York Court of Appeals held that a mistrial was justified in two separate cases: In Enright, the prosecution inadvertently introduced a suppressed confession. In Huntzinger, a key defense witness became unavailable and defense counsel made prejudicial remarks during voir dire. The Court emphasized that a trial judge’s determination of manifest necessity warrants deference due to their superior position to assess the situation, but the reasons for mistrial must be “necessitous, actual and substantial.”

    Facts

    Enright: Defendant was indicted for robbery. After a Huntley hearing, his confession was initially deemed admissible. The confession was referenced in opening statements. The prosecutor then discovered a Miranda rights statement indicating Enright requested counsel before confessing. The confession was suppressed.

    Huntzinger: Defendant was indicted for sodomy. He appeared at trial in a wheelchair, accompanied by an attendant. During voir dire, defense counsel made statements appealing to the jury’s sympathy. After the jury was sworn, the trial court declared a mistrial because of: 1) prejudice to the People from the defendant’s appearance; 2) improper remarks during voir dire; and 3) the unavailability of a crucial defense witness (Chief Jackson), who could not testify due to surgery.

    Procedural History

    Enright: After the trial court declared a mistrial, Enright sought to prohibit retrial via an Article 78 proceeding. The Appellate Division held the mistrial was an abuse of discretion.

    Huntzinger: After the trial court declared a mistrial, Huntzinger commenced an Article 78 proceeding seeking to prohibit retrial. The Appellate Division held that the mistrial was an abuse of discretion.

    The Court of Appeals consolidated the appeals of both cases.

    Issue(s)

    1. Whether the trial court abused its discretion in declaring a mistrial in Enright after the prosecution inadvertently referenced a suppressed confession in its opening statement.

    2. Whether the trial court abused its discretion in declaring a mistrial in Huntzinger due to the defendant’s sympathetic appearance, defense counsel’s improper voir dire statements, and the unavailability of a key defense witness.

    Holding

    1. No, because there was “manifest necessity” to declare a mistrial to ensure a fair trial for the defendant after a confession was presented to the jury and later suppressed.

    2. No, because considering the combination of the defendant’s appearance, the improper voir dire remarks, and the unavailability of a crucial witness, the trial court did not abuse its discretion.

    Court’s Reasoning

    The Court of Appeals stated that retrial is barred after a mistrial declared without defendant’s consent unless there is “manifest necessity” for the mistrial or the ends of public justice would be defeated. The Court emphasized deference to the trial judge’s discretion, recognizing that the trial judge is in the best position to determine necessity. However, the reasons for the mistrial must be “necessitous, actual and substantial” and not merely for the convenience of the court. The court noted, ” ‘a defendant’s valued right to have his trial completed by a particular tribunal must in some circumstances be subordinated to the public’s interest in fair trials designed to end in just judgments.’ ”

    In Enright, the court found the inadvertent introduction of the suppressed confession created prejudice for both sides, as unsophisticated jurors may struggle to disregard the confession. The court emphasized that Enright’s counsel agreed the jury could not be “sanitized.” Therefore, the mistrial was justified to protect the defendant’s right to a fair trial.

    In Huntzinger, the court found the unavailability of Chief Jackson, deemed “absolutely crucial” by the defense, justified the mistrial. The defense could not estimate the length of Jackson’s unavailability, so the trial judge was not obligated to grant an indefinite continuance. The Court found that considering the witness unavailability along with the improper remarks during voir dire supported the mistrial declaration.

    The court concluded by stating that in both cases, the trial judge did not abuse their discretion, reversing the judgment of the Appellate Division and dismissing the petitions.

  • People v. Arroyo, 54 N.Y.2d 567 (1982): Admissibility of Prior Testimony When a Witness is Unavailable

    People v. Arroyo, 54 N.Y.2d 567 (1982)

    Prior testimony of an unavailable witness is admissible at trial if the prosecution demonstrates due diligence in attempting to locate the witness and the prior testimony bears sufficient indicia of reliability, including an opportunity for cross-examination.

    Summary

    Arroyo was convicted of assault based on the prior preliminary hearing testimony of the victim, his estranged common-law wife, who disappeared before trial. The New York Court of Appeals affirmed the conviction, holding that the prosecution had demonstrated due diligence in attempting to locate the witness and that the prior testimony was reliable because Arroyo was present at the preliminary hearing, represented by counsel, and had the opportunity to cross-examine the witness. The court emphasized that the right to confrontation is not absolute and that prior testimony can be admissible if it bears sufficient indicia of reliability.

    Facts

    Arroyo was charged with assault for allegedly stabbing his estranged common-law wife. The victim testified at a preliminary hearing. Prior to trial, the victim disappeared. The prosecution asserted diligent efforts were made to locate her. The prosecution’s case rested largely on the victim’s preliminary hearing testimony, along with police officer and hospital personnel testimony regarding the assault’s circumstances.

    Procedural History

    The trial court ruled the victim’s preliminary hearing testimony admissible, with redactions. Arroyo was convicted of second-degree assault. The Appellate Division affirmed the conviction. Arroyo appealed to the New York Court of Appeals, arguing that the admission of the prior testimony violated his right to confrontation.

    Issue(s)

    1. Whether the prosecution exercised “due diligence” in attempting to locate the missing witness, as required by CPL 670.10, to justify the admission of her preliminary hearing testimony.
    2. Whether the preliminary hearing provided a sufficient opportunity for cross-examination to satisfy confrontation clause requirements, thereby allowing the introduction of the witness’s testimony at trial.

    Holding

    1. Yes, because the prosecution made reasonable efforts to locate the witness, including contacting her, visiting her apartment, and checking with various agencies and individuals, leading the trial court to conclude she was intentionally hiding.
    2. Yes, because Arroyo was present at the preliminary hearing, represented by counsel, and had the opportunity to cross-examine the witness; the court found no meaningful frustration of that right.

    Court’s Reasoning

    The Court of Appeals emphasized the importance of a defendant’s right to confront adverse witnesses, including the opportunity for cross-examination. However, this right is not absolute. Prior testimony can be admissible if the witness is unavailable and the testimony bears sufficient indicia of reliability. The court stated that the prosecution must demonstrate “due diligence” in attempting to locate the witness, showing that their failure to produce her was not due to indifference or strategic preference. The court reviewed the trial court’s factual finding that the prosecution exercised due diligence, noting the various steps taken to locate the witness, including phone calls, visits to her apartment, and inquiries with neighbors and agencies. The court found this determination was supported by the evidence. Regarding reliability, the court noted the solemnity of the preliminary hearing, the witness’s testimony under oath, and Arroyo’s opportunity for cross-examination. The court rejected Arroyo’s argument that the preliminary hearing was too limited for effective cross-examination, stating that a “fair opportunity” to cross-examine is sufficient. The court also rejected Arroyo’s claim that he should have been allowed to withdraw his counsel’s cross-examination, stating that the testimony, once given, becomes an integral part of the record. The court stated, “the constitutional provision was not intended to secure to the accused person the right to be confronted with the witnesses against him upon his final trial; but to protect him against ex parte affidavits and depositions taken in his absence.” The court concluded that the victim’s prior testimony was sufficiently reliable to support Arroyo’s conviction, despite the fact that the People’s case depended on the prior statement, cautioning that “there may be instances in which, though the circumstances surrounding prior testimony have rendered it admissible, in the context of the entire case as it develops, the prior testimony, by itself, will be found insufficient to support a guilty verdict beyond a reasonable doubt.”

  • Andriano v. Caronia, 41 N.Y.2d 98 (1976): Sufficiency of Evidence in Motor Vehicle Accident Cases with Unavailable Witnesses

    Andriano v. Caronia, 41 N.Y.2d 98 (1976)

    In motor vehicle accident cases where key witnesses are unavailable, the standard of proof for establishing negligence may be relaxed, and a jury may draw reasonable inferences from circumstantial evidence.

    Summary

    This case addresses the sufficiency of evidence required to prove negligence in a motor vehicle accident when key witnesses, including one driver who died and another who suffered amnesia, are unavailable to testify. The Court of Appeals held that the available eyewitness testimony, combined with physical evidence from the accident scene, provided sufficient basis for the jury to find negligence on the part of both drivers. The court emphasized that in reconstructing rapidly unfolding events like car accidents, absolute “precision” in proof is not always possible or required, especially when crucial witnesses cannot testify.

    Facts

    A fatal collision occurred between two automobiles. One driver died, and the other suffered amnesia, rendering them unable to testify about the accident. The sole available eyewitness provided testimony regarding the moments leading up to the impact. Police officers investigated the scene and gathered photographic and physical evidence. The estate of a passenger who died in the accident was awarded damages.

    Procedural History

    The case was tried before a jury, which found both drivers negligent. The Appellate Division affirmed the jury’s verdict. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether the evidence presented at trial, consisting of limited eyewitness testimony and physical evidence, was sufficient to support the jury’s finding of negligence on the part of both drivers, given the unavailability of key witnesses.

    Holding

    Yes, because the available eyewitness testimony, combined with the photographic and physical evidence, and the reasonable inferences drawn therefrom, provided a sufficient basis for the jury to find negligence on the part of both drivers. The Court also noted the lack of exceptions taken at trial, thus claims of error with respect to the jury charge were not preserved for review.

    Court’s Reasoning

    The Court of Appeals affirmed the lower court’s decision, emphasizing that the jury was entitled to draw reasonable inferences from the evidence presented. The court acknowledged the inherent difficulties in reconstructing a rapidly unfolding event like a car accident, especially when key witnesses are unable to testify. The court cited Pfaffenbach v. White Plains Express Corp., noting that “precision” of proof cannot always be expected or required. The court also referenced Noseworthy v. City of New York and Schechter v. Klanfer, which support the principle that a lesser degree of proof may be required when a party with knowledge of the facts is deceased or suffers from amnesia. The court stated, “In affirming, the Appellate Division also had a right to take into account the fact that, in the reconstruction of an event that has been produced quickly and unexpectedly by the dynamics of rapidly moving motor vehicles, ‘precision’ of proof cannot always be expected or required.” Because there were no exceptions taken at trial to the charge to the jury, any present claim of error with respect thereto was not preserved for review. The Court reasoned that the available evidence, though limited, was sufficient to allow the jury to reasonably conclude that both drivers were negligent.