Tuesday, October 21, 2014

Is sum and substance good enough for Grand Jury testimony?

The prosecution’s new penchant for videotaping confessions/interrogations raises the following issue. The facts are generally straight forward. The defendant is arrested, detained and interrogated by police investigators. The entire interrogation is video and audio recorded. He starts off denying everything then gradually lets some information slip out, then before you know it he cracks like an egg and admits everything. The tapes vary in length, but generally are 6 - 10 hours long. Lots of gaps, sometimes the defendant offers thin evidence of self-defense, intoxication, recklessness etc. The CPL 710.30 notice references the oral statements made by the defendant and evidenced on the accompanying DVD. At the Huntley hearing you get the interrogator’s grand jury testimony.

Now the fun starts.  In the testimony before the grand jury, the DA lays out that the defendant was interviewed, advised of Miranda, waived, agreed to talk and was interviewed by the investigator. Was the interrogation videotaped? Yes. How long is it? Twelve hours. Now the question...In sum and substance can you describe to the grand jury what he said? Sure no problem -- and the twelve hour interview gets reduced to twelve lines. First he denied it, then we continued to question him further over the course of the interview and he eventually admitted shooting the victim. My experience has been the prosecution never introduces or plays the videotape because it's too long. Try this laundry list for you motion to inspect the grand jury minutes and dismiss the indictment under CPL § 210.

a. The grand jury was not instructed as to complete defense, such as alibi or justification.  People v. Karp, 158 AD2d 378, 551 NYS2d 503.  People v. Valles, 62 NY2d 36, People v. Lancaster, 69 NY2d 20, or agency, People v. Jenkins, 157 AD2d 854 (2nd Dept. 1990); see also, People v. Falcon, 204 AD2d 181 (1st Dept 1994) (Indictment dismissed). The People enjoy wide discretion in presenting their case to the Grand Jury, but the prosecutor performs a dual role of advocate and public officer, charged with the duty not only to secure indictments but also to see that justice is done. ((citing People v. Lancaster, 69 NY2d 20, 25-26)). Having elected to introduce the written one page statement of the defendant, the prosecutor was obligated to introduce the videotaped statement as well, which given during the course of a continuous interrogation, amplified the written statement and contained facts sufficient to support the defense of justification that the People were required to charge to the grand jury). 

b. A material statement, here the videotaped interrogation, was withheld to the extent that the grand jury was misled by the prosecutor’s presentation and the Investigator’s testimony.  People v. Abbatiello, 129 Misc2d 831, 494 NYS2d 625 (indictment dismissed where DA withheld statement by car owner that weapons inside were his own); People v. Livingston, 175 Misc.2d 322, 668 N.Y.S.2d 443 (1998) (And although such videotapes need not always be presented to a Grand Jury it is noted that in driving while intoxicated cases the trier of fact is often left with a decision as to whether or not the “opinion” of the arresting officer as to defendant's state of intoxication, or lack thereof, will be accepted. In this case where there was no evidence of erratic driving on the part of the defendant, and especially since the videotape shows the defendant performing those sobriety tests in a manner at odds with the opinion of the arresting officer and his partner, the videotape can indeed allow the Grand Jury to reach its own opinion. The Court finds that the failure to present the videotape to the Grand Jury impaired the integrity of the proceeding and prejudiced defendant (CPL 210.35[5]).

c. Indictment dismissed where the People introduced inculpatory portions of defendant's statement to investigating officer, but not the exculpatory portions of that same videotaped statement which were part of a continuous interrogation.  People v. Rodriguez, 188 AD2d 566 (1992). Here the testifying Investigator never mentioned the alternative explanations offered by the defendant, reducing the interrogation to, “he eventually admitted he was in fact the front seat passenger....and he was the one who fired two shots at the victim.” This was a blatant misrepresentation and omission of any exculpatory explanations elicited by the interrogation. Here the rule of completeness requires defendant was entitled to have his complete statement/interrogation, rather than only the inculpatory assertions of the Investigator introduced into evidence before the grand jury. See, People v. Dlugash, 41 NY2d 725; People v. Saintilima, 173 AD2d 496, 497; People v. Blackburn, 213 A.D.2d 1009 (4th Dept.,1995). The court erred in permitting the People to read into evidence an inculpatory portion of defendant's Grand Jury testimony, while denying defense counsel's request to have read into evidence exculpatory portions of that testimony or portions that explained the testimony introduced by the People.

d. Inadmissible hearsay evidence was adduced before the grand jury.  CPL 190.30(1), People v. Jackson, 18 NY2d 516, U.S. v. Diaz, 922 F2d 998 (2nd Cir.). The sum and substance narrative of the Investigator is his conclusory opinion or synopsis of the 12 hour interrogation, not statements of the defendant. New York State indictments must be based on competent evidence, meaning evidence not subject to an exclusionary rule, such as the prohibition against hearsay (Richardson, Evidence § 4, at 4 [Prince 10th ed]; see also, People v. Oakley, 28 NY2d 309, 314; People v. Swamp, 84 NY2d 725,730 (1995). More than conclusory assertions of the defendant’s conduct are required at the Grand Jury stage. People v. Dumas, 68 NY2d 729; People v. Kenny, 30 NY2d at 157; People v. Swamp, supra, 84 NY2d at 730.

Good hunting. 

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