Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 2, #2©

ISSUE: May a defendant's testimony from an administrative hearing be introduced at a criminal trial?

A PERSON who is accused of a crime may also face civil suit or administrative hearing as well. Testimony that a defendant gives in such a forum may become evidence that is offered against the defendant at a criminal trial. Handling a Criminal Case in New York, sec. 18:176. To what extent may these statements be used?

Generally, such statements are admissible. This includes statements made:
· at a DMV hearing
· parole revocation hearing, People v. Van Skiver, 111 AD2d 1032, 491 NYS2d 191 (3d Dept 1985)
· probation revocation hearing
· UIB hearing
· school suspension hearings
· civil lawsuits
· Family Court proceedings, People v. Cassels, 260 AD2d 392, 687 NYS2d 681 (2d Dept 1999).

In such proceedings, while a defendant may not be compelled to testify, a negative inference may be drawn from the failure to testify. Matter of Jenny N., 262 AD2d 951, 692 NYS2d 554 (4th Dept 1999) (Family Court proceeding); Walden Marine Inc. v. Walden, 266 AD2d 933, 698 NYS2d 185 (4th Dept 1999).

A defendant facing more than one forum may seek to have the civil proceeding stayed. See People v. Zimmer, 166 Misc2d 256, 632 NYS2d 945 (Sup Ct 1995); Muldoon, "Collateral Effects of a Criminal Conviction," NYS Bar Journal July /August 1998, p. 26. However, a court may decline the stay application. Walden Marine Inc v. Walden, supra.

THERE are a few areas where a defendant's statements are inadmissible in the criminal proceeding. Under Garrity v. New Jersey, where an employee faces imminent loss of employment, statements made in a disciplinary proceeding are inadmissible. 385 US 493, 87 S Ct 616, 17 L Ed 2d 562 (1967).

Similarly, a defendant's statements made in a prison disciplinary proceeding are inadmissible. People v. Nunez-Ramos, 160 AD2d 1029, 554 NYS2d 947 (2d Dept 1990); 7 NYCRR 251-3.1a.

Statements made to a mediator, in an alternative dispute resolution setting, are inadmissible in a criminal proceeding. Judiciary Law, sec. 849-b; People v. Snyder, 129 Misc2d 137, 492 NYS2d 890 (Sup Ct 1985).

Finally, CPL 60.46 applies to statements made in a Family Offense proceeding. Such statements made without benefit of counsel are inadmissible unless a defendant specifically waives the right to counsel.

Statements made by a defendant in pretrial hearings (e.g., suppression, Sandoval), involving the same criminal proceeding, are inadmissible at trial. Simmons v. US, 390 US 377, 88 S Ct 967, 19 L Ed 2d 1247 (1967); Handling, supra, 11:55. However, a defendant's testimony at preliminary hearing or grand jury is admissible on the people's direct case. Handling, supra, 6:55, 5:30, 18:176.

QUOTATION:
"If in the first act you hang a pistol on the wall, then in the last act, it must be shot off. Otherwise, you do not hang it there."
Anton Chekhov, noted in Dershowitz, Reversal of Fortune, p. xxiii.

DEFINITION:
Lawsuit, n. a machine which you go into as a pig and come out as a sausage.
Ambrose Bierce, The Devil's Dictionary

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