Muldoon, Getz & Reston

Welcome to the law firm of Muldoon, Getz & Reston - Serving Rochester since 2003

Issues In NY Criminal Law--Vol. 3, #6©

Issue: Whether testimony of a witness adduced at grand jury can be used at trial, when the witness is absent.

The grand jury testimony of a witness, like other prior statements, may be used at a criminal trial for impeachment purposes; that is, on cross-examination. But may grand jury testimony be introduced on a party's direct case? Normally, no; an out-of-court statement, including grand jury testimony, is excludable as hearsay.

In some situations, however, grand jury testimony may be admissible on direct.

A defendant who testifies at the grand jury waives immunity. The standard waiver form states that the defendant "consent(s) and agree(s) to the use against me of any testimony by me before the Grand Jury . . . upon any . . . trial . . .."

Prosecution case

At trial, the prosecution may introduce the defendant's testimony into evidence as part of its direct case. People v Singleton, 138 AD2d 544, 526 NYS2d 40 (2nd Dept 1988). The statement may be introduced as an admission. People v Rose, 224 AD2d 643, 639 NYS2d 413 (2nd Dept 1996). Muldoon and Feuerstein, Handling a Criminal Case in New York, §§ 6:58, 18:178 (West Group 2000).

Defense case

Consider a second situation: where a witness who is favorable to the defense testified at grand jury, but is no longer available to testify at trial, can that testimony be offered on the defense's case? Yes, according to People v Robinson, 89 NY2d 648, 657 NYS2d 575 (1997). The opposing attorney at trial, the prosecutor, has had the opportunity at the grand jury to examine the witness.

The defense must show that the testimony is material and that it bears evidence of reliability. The defense must show that the witness is unavailable -- for example, that the witness has died. As the Court of Appeals has drolly observed, "no person can be more ‘unavailable' for cross-examination than one who has died prior to trial." People v Sanders, 56 NY2d 51, 451 NYS2d 30 (1982), (coconspirator exception to hearsay rule).

Where the proffered testimony does not meet these criteria, it is inadmissible. In People v Guerriero, for instance, the defense sought admission of a codefendant's grand jury testimony. However, the codefendant's testimony did not contradict the victim or other prosecution witness in any material respect. Thus, the testimony was held to be immaterial, and was excluded. People v Guerriero, 221 AD2d 560, 633 NYS2d 597 (2nd Dept 1995).

Finally, and a bit off the main topic, if a person who testified at grand jury is called to testify at trial as a defense witness, the prosecutor must turn over the previous testimony, at least where the prosecutor uses the previous testimony to impeach. See People v Barbera, 220 AD2d 601, 632 NYS2d 821 (1996)

"The hope that every man can be his own lawyer, which has existed for centuries, is probably no more realistic than having people be their own doctor." -- Robert M. Tiersma, Legal Language


Copyright© 1999-2008 by Gary Muldoon. All rights reserved