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Using Testimony From Prior Proceedings at Trial
by Gary Muldoon
Muldoon & Getz
Rochester, New York

There are times when a witness who has testified at an earlier proceeding is unable to testify at trial. In such a situation, the prior testimony may be admissible by statute, CPL 670.10. Inability to testify includes death, illness or incapacity, or where the witness is outside the state or in federal custody.

Due diligence

The statute imposes a due-diligence requirement. That is, the offering party must show due diligence in attempting to obtain the witness. People v Diaz, 97 NY2d 109 (2001); People v Whitley, 78 AD3d 1084 (2d Dept 2010).

Preliminary hearing testimony

Where a witness testified at a preliminary hearing but is unavailable for trial, the prosecution may introduce that testimony. But the defense may properly object on confrontation grounds if the defense right to cross-examine was restricted at the hearing. People v Simmons, 36 NY2d 126 (1975); People v Harvey, 57 AD3d 1446 (4th Dept 2008).

Grand jury testimony

The statute does not include grand jury testimony. However, where a grand jury witness offers exculpatory testimony but is unavailable at trial, the defense may offer that previous testimony upon a showing of sufficient indicia of reliability, and of defense efforts, such as a missing witness order, to have the witness produced. People v Robinson, 89 NY2d 648 (1997).

Similarly, where a witness has been tampered with by the defendant, the grand jury testimony may be found admissible after a Sirois hearing. People v Bosier, 6 NY3d 523 (2006).

Defendant’s own testimony

Where a defendant testified at a previous trial, that testimony may be introduced on retrial. This is not part of CPL 670.10 but is admissible under the party admission exception to the hearsay rule. People v Gardner, 237 AD2d 895 (4th Dept 1997).


Where retrial occurs and a witness from the previous trial is outside the state and unavailable, that testimony may be admitted. People v Carracedo, 228 AD2d 199 (1st Dept 1996), order affd 89 NY2d 1059 (1997).


Where a witness recants after testifying, the testimony may be admissible while the recantation found inadmissible. See People Whitley, 14 AD3d 403 (1st Dept 2005).


Underlying the admissibility of prior testimony is the potential that its use at trial may violate the constitutional right of confrontation. People v Harvey, supra.

© 2012 by Gary Muldoon