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Issues In NY Criminal Law--Vol. 4, #16©

Issue: Admissibility of absent witness's statement at trial; Right of confrontation

The Sirois hearing

When a prosecution witness either becomes unavailable to testify at trial or refuses to testify, the prosecution might allege that this is due to the defendant's misconduct. In this situation, the prosecution may introduce the witness's prior statements at trial if it can show that the defendant is responsible for or acquiesced in conduct that results in the witness's nonappearance. The forum to establish this is a Sirois hearing.

The hearing is named after Daniel Sirois, the defendant in Holtzman v Hellenbrand, 92 AD2d 405, 460 NYS2d 591 (2d Dept 1983). See also, US v Mastrangelo, 693 F2d 269 (2d Cir 1982), cert. denied 467 US 1204 (1984); 149 ALR Fed 231; Handling a Criminal Case in New York, §7:30, 18:189.

In order to obtain the hearing, the prosecution must allege specific facts that the defendant's conduct induced the witness's refusal. Absent waiver by the defendant, a hearing is needed to determine the admissibility of the prior statement, where the prosecution must establish defendant's responsibility for a witness refusing to testify. People v Johnson, 93 NY2d 254, 689 NYS2d 689 (1999).

Burden of proof

Unavailability of the witness is not what must be established. Rather, the prosecution is required to show that the defendant caused or acquiesced in the witness's absence or non-cooperation.

Not every act of witness non-cooperation is attributable to a defendant. Witnesses may be disinclined or refuse to testify for a variety of reasons. A witness may have previously testified falsely and face increased likelihood of exposure by being cross-examined. Additionally, there is the general disinclination on the part of some people to get involved. These motivations cannot be attributed to the defendant so as to circumscribe the defendant's due process rights to confront and cross-examine witnesses. People v Johnson, 93 NY2d 254, 689 NYS2d 689 (1999). The fact that a defendant derives substantial benefit from a witness's refusal to testify does not sustain the prosecution's burden. People v Hamilton, 127 AD2d 691, 511 NYS2d 912 (2d Dept 1987), affd 70 NY2d 987, 526 NYS2d 421 (1988). See also, People v Maher, 89 NY2d 456, 654 NYS2d 1004 (1997) (harmless error); People v Flowers, 245 AD2d 1088, 667 NYS2d 546 (4th Dept 1997) (harmless error).

Because of the nature of the alleged intimidation, the prosecution's evidence at a Sirois hearing is often circumstantial in nature. The hearing testimony may be hearsay, in whole or in part. People v Geraci, 85 NY2d 359, 625 NYS2d 469 (1995); People v Cotto, 92 NY2d 68, 677 NYS2d 35 (1998); People v Lewis, 2003 WL 2008244 (4th Dept 2003).

If the prosecution meets its burden, it may introduce the grand jury testimony or other out-of-court statement, which normally would be inadmissible at trial. The defendant is deemed to have forfeited any objection to the admissibility of this testimony. This exception to the hearsay rule is justified not by the inherent reliability of the evidence, but rather by the public policy of reducing any incentive to tamper with witnesses. The defendant also forfeits the Sixth Amendment right of confrontation.

Even where a prosecution witness appears at trial, the prosecution may seek to introduce that person's prior statement. If the prosecution can show that the witness was intimidated into forgetting the incident or giving testimony inconsistent with what was given before, the earlier statement may be admitted. See also, People v Fratello, 92 NY2d 565, 684 NYS2d 149 (1998).

Intimidation of and tampering with a witness are additional crimes, of course. See Penal Law article 215. The misconduct may also be independently admissible at trial as evidence of an uncharged crime. Handling §12:44.

Other out-of-court statements

The usual prior statement that the prosecution seeks to introduce at trial is grand jury testimony. In addition, the prosecution may be able to introduce other out-of-court statements of the witness. People v Cotto, 92 NY2d 68, 677 NYS2d 35 (1998); People v Straker, 173 Misc2d 949, 662 NYS2d 166 (Sup Ct 1997); Note, 21 Cardozo L. Rev. 211 (1999).

In People v Cotto, the New York Court of Appeals, in a divided opinion, upheld the admissibility of out-of-court statements and the barring of cross-examination. On further review by the Second Circuit, half of this procedure was faulted: while the witness may have been intimidated, the defense retained the right to cross-examine the witness. The Second Circuit agreed with the analysis of Judge Smith's Court of Appeals dissent. The witness had a motive to fabricate, and the defense retains the right to question the witness. Cotto v Herbert, 331 F3d 217 (2d Cir 2003).

Other objections

Aside from the hearsay and confrontation objections, the prior statements that the prosecution seeks to introduce may be objectionable on other grounds. In one case, where the prosecution sought to introduce a statement that referred to an improper identification, this portion of the absent witness's testimony was inadmissible. People v Joyner, 284 AD2d 344, 726 NYS2d 434 (2d Dept 2001).

However, where defense counsel at trial sought to impeach an absent eyewitness's testimony, the Fourth Department held this improper. People v Pace, 300 AD2d 1071, 752 NYS2d 489 (4th Dept 2002). The method of attempted impeachment was other out-of-court statements of the witness, which the Appellate Division noted were hearsay and thus inadmissible absent some exception to the hearsay rule. The decision went further, however, and stated that the defendant's forfeiture also precluded his attempt to impeach the missing eyewitness.

This latter reason takes the holding of the Sirois line of decisions one step beyond previous decisional case law, and may be unwarranted. Should a judge's ruling at a pretrial hearing bar a defendant at trial from daring to question the reliability of an absent witness's account? If other methods of impeachment were offered e.g., showing bias or other motive to testify falsely, convictions of the witness, or reputation for lying would the extent of forfeiture extend to these as well?

At bottom is the right to present a defense, and to have a jury decide whether a defendant is guilty or not guilty. A Sirois ruling itself represents a significant short-circuiting of the normal adjudication process of guilt or innocence. Extending the scope of forfeiture to bar impeachment evidence places an exceedingly high degree of trust in the pretrial hearing's ruling. Reasonable minds can differ on whether the clear and convincing burden has been met. See People v Lewis, supra. The Sirois ruling also results in the absent witness's statement becoming de facto unquestionable. It could result in the prosecution being able to insulate a witness of dubious credibility. Whether the witness is present (Cotto) or absent (Pace), that witness's version of events is subject to disagreement. The extension of Sirois reasoning in Pace may need to be reexamined in light of the Second Circuit's decision in Cotto v Herbert.

Dawson charge
Defense witness (e.g., alibi witness) has no duty to come forward to the prosecution with evidence favorable to the defendant but may be discredited by failure to come forward unless the witness, for example, spoke with a defense attorney and was told to not speak with a prosecutor. People v Dawson, 50 NY2d 311, 428 NYS2d 914 (1980).

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