Friday, May 9, 2014

Challlenging the Admission of Depositions at Preliminary Hearings

 by
Jill Paperno,
author of Representing the Accused: A Practical Guide to Criminal Defense

As you know, sometimes prosecutors offer depositions of witnesses at preliminary hearings.  The types of information permitted by deposition are the same as what is permitted before the Grand Jury, and is set forth in CPL 190.30(3), and incorporated by reference into the preliminary hearing statute in 180.60(8).  But as two PDs appearing in City Court recently observed, a court does not have to automatically accept the deposition.  CPL 180.60(8) states that a deposition is admissible "unless the court determines, upon application of the defendant, that such hearsay evidence is, under the particular circumstances of the case, not sufficiently reliable, in which case the court shall require that the witness testify in person and be subject to cross-examination."

So a defense attorney can challenge the deposition if the other testimony seems to support a conclusion that the evidence contained in the deposition is not sufficiently reliable - for example, if it contradicts other evidence in the case, or is premised on questionable facts.  

And you may also wish to challenge the statement if it does not comport with the technical requirement of CPL 190.30 that it be under oath.  What is "under oath"?  For a discussion, take a look at People v. Penaflorida, which reviews the requirements of an oath:
An affidavit consists of several formal parts, the title, the venue, the formal opening, the signature of the affiant, and the jurat, as well as the statement of facts to be sworn to. The document here contains the title, the venue, the formal opening, and is signed by the affiant. It says the affiant was duly sworn and deposes and says the state facts. An unsworn declaration neither made under penalty of perjury nor stating that the document is true, is not an “affidavit.” Lamberti v. U.S., 22 F.Supp.2d 60 [S.D.N.Y. 1998], aff'd, 201 F.3d 430, 1999 WL 1212654 [2d Cir.1999]. The jurat is defined by Penal Law § 210.00(7) as a clause wherein an attesting officer certifies, among other things, that the subscriber has appeared before him or her and sworn to the truth of the contents. It is simply evidence of the fact that the oath was properly taken before a duly authorized officer. Here, the jurat is defective since: (1) it is not made by a duly authorized officer, &; (2) the name of the person before whom it was sworn is not printed beneath the signature. CPLR § 2101(a).
The oath requirement could have been met by using the form of an affirmation—“X”, being duly licensed to practice medicine in this state affirms the following under the penalties of perjury” or a properly executed affidavit taken before an authorized officer, or containing the language under Penal Law § 210.45—a written instrument bearing a notice to the effect that false statements made therein are punishable by penalties of perjury. This document does not qualify as any of those.
People v. Penaflorida, 34 Misc. 3d 420, 425, 932 N.Y.S.2d 682, 686 (Civ. Ct. 2011)

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