The appeal here comes from a conviction, after a jury trial, of predatory sexual assault against a child and course of sexual conduct against a child in the first degree. The defendant here was infected with a certain sexually transmitted disease (STD) that was proved at trial albeit without testimony. The issue becomes whether there is a confrontation clause issue.
Recently, the Supreme Court held that no Confrontation Clause violation occurred when the statements of a three year old child, who did not testify, were admitted into evidence against a defendant. The Court held that these statements by a child to a teacher were made to address an ongoing emergency: child abuse. Since Crawford v. Washington, Courts have struggled with what is barred by the Sixth Amendment’s Confrontation Clause. Criminal defense attorneys know that the issue is daunting and the Crawford decision has led to much confusion.
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Like any good rule, however, there are exceptions. In Ohio v. Clark, 135 S.CT. ___ (June 18, 2015), the Supreme Court of the United States reversed: holding that the introduction at trial of statements made by a three-year-old boy to his teachers identifying his mother’s boyfriend as the source of his injuries did not violate the Confrontation Clause, when the child did not testify at trial, because the statements were not made with the primary purpose of creating evidence for prosecution.
Later decisions would clarify what was and what was not testimonial. The Supreme Court made clear that “if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” In Bullcoming, a Driving While Intoxicated (“DWI”) prosecution, the Court evaluated whether a blood analysis was testimonial even though it was made in the regular course of DWI prosecutions. Although this occurs quite regularly in criminal trials, the Supreme Court held that “[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because— having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.” more
Spread the word: Phone calls made in jails and prisons are often subject to recording. Here, the (New York) department of corrections recorded the defendant’s phone calls to the complainant which, inter alia, could very well served as the proof of yet another criminal charge. The original set of domestic violence charges stems from the defendant assaulting the complainant and her son. In one instance of assault, an off-duty police officer (as well as the defendant) were shot. New York domestic violence cases are difficult to prosecute because the failure of the complaining witness to comply with court orders and follow through with pursuing criminal charges against the perpetrator of domestic violence. As is the case here, sometimes the perpetrator of domestic violence takes an active role in preventing the witness (complainant) from coming forward. The issue becomes whether statements of the complaining witness can be utilized against the defendant when the defendant prevents the complainant from testifying against him.
In the instant matter, “[t]he People have moved to admit into evidence at trial out-of-court statements made by the complainant at or around the time of the commission of the crime, both on audiotape to an Assistant District Attorney, and before the Grand Jury, claiming that the complainant is unavailable to testify at trial due to misconduct by the defendant. The defendant opposes the motion and a hearing was held on July 20, 2015, and continued on September 11, 2015, September 25, 2015, and concluded on October 30, 2015.” The pertinent law is as follows:
A defendant in a criminal case enjoys the right to confront the witnesses against him at trial pursuant to the Sixth Amendment of the United States Constitution. This right can be voluntarily waived by a defendant; it can also be forfeited if his own misconduct renders a witness unavailable to testify at trial. United States v. Mastrangelo, 693 F 2d 269 (1982), cert denied 456 U.S. 973 ; Snyder v. Mass, 291 U.S. 97 (1934). If a witnesses’ unavailability is procured by the defendant through chicanery (United States v. Mayes, 512 F 2d 687 [6th Cir, 1975], cert den 422 U.S. 1008 ); by threats (United States v. Balano, 618 F 2d 624 [10th Cir, 1979], cert den 449 U.S. 840 ); or by actual violence or murder (United States v. Thevis 665 F 2d 616 [5th Cir, 1982], cert den 456 U.S. 1008 ), the defendant cannot assert his Confrontation Clause rights or the rules against hearsay to prevent out-of-court statements from being admitted against him. Any other result would mock the very system of justice the Confrontation Clause was designed to protect. United States v. Mastrangelo, supra, at 273. Included in witness intimidation is the use of a relationship in which a defendant has a “controlling” or “coercive” effect on the witness. People v. Byrd, 51 A.D.3d 267(1st Dept. 2008); see also People v. Johnson, 93 NY 2d 254 (1999). This is especially true in domestic violence cases. See People v. Santiago 2003 NY Misc Lexis 829 (NY Co. Sup Ct 2003, Atlas, J.)
New York State has adopted this rule based on the sound public policy of protecting the integrity of the adversarial process by deterring litigants from tampering with witnesses who may testify adversely to them. People v. Geraci, 85 NY 2d 359 (1995). At a hearing to determine whether such misconduct occurred, causing a witness to become unavailable to the People, the prosecutor’s burden is to show, by clear and convincing evidence, that the witness’ unavailability was procured by the defendant’s misconduct. Geraci, supra, at 366; People v. Cotto, 92 NY 2d 68 (1998); Holtzman v. Hellenbrand, 92 AD 2d 405 (2nd Dept. 1983) If the People meet that burden, the defendant is precluded from asserting either the constitutional right of confrontation, or the evidentiary rules against the admission of hearsay, to prevent the admission of the witness’ out-of-court declarations. Geraci, at 366; Cotto, at 76. These statements are not limited to Grand Jury testimony but can include other out-of-court statements. Cotto at 77.