Eyewitness Testified in the Grand Jury Refused to Testify at Trial in New York

In People v. Geraci, 85 NY2d 359, 649 NE2d 817, 625 NYS2d 469 [1995], an eyewitness to a shooting testified in the grand jury but later refused to testify at trial. When the witness was later taken into custody on a material witness order, the physically available witness as serted that "he would not repeat the story he told the Grand Jury if he were required to testify at defendant's trial" (id.). The trial court found that the witness was "practically unavailable," a finding upheld on appeal by the Court of Appeals, even though the witness was obviously present and prepared to testify to a version of events which differed from his grand jury testimony (Id. at 364, 370.The New York State Court of Appeals upheld the notion that a witness' prior, out-of-court statements are admissible at trial where it can be shown that the accused procured the unavailability of that witness through violence, threats, or chicanery: While the principle is often characterized as involving "waiver by misconduct," it is more realistically described as a forfeiture dictated by sound public policy. Indeed, the courts that have applied the rule have frequently justified it by invoking the maxim that the law will not allow a person to take advantage of his own wrong. Additionally, the rule is invoked to protect the integrity of the adversary process by deterring litigants from acting on strong incentives to prevent the testimony of an adverse witness. Like all of the other courts that have adopted and applied the rule, we conclude that out-of-court statements, including Grand Jury testimony, may be admitted as direct evidence where the witness is unavailable to testify at trial and the proof establishes that the witness's unavailability was procured by misconduct on the part of the defendant. All of these cases reinforce the notion that the fundamental right to face-to-face confrontation of one's accusers can be abridged under certain circumstances.