A 43-year old New Yorker has been charged with murder in the second degree. The prosecution alleged that the defendant was involved in the murder of an eyewitness to the said murder and sought to introduce the witness’ grand jury testimony at the defendant’s trial on the ground that the defendant waived his right to confront the witness.
The records of the case showed that the witness was the only civilian witness to testify before the Grand Jury. The witness said that he saw the shooting of man he knew by name who he described was a security guard but who was not wearing a uniform at the time of the incident. According to the witness’ mother, she asked her son to change his testimony or not to testify because she received several phone calls telling her that her son was the cause why another man was in jail. The caller also allegedly asked the witness’ mother to testify on behalf of her son and tell the grand jury that her son was a drug addict and that he had not seen the crime that he claimed to have seen. The mother said the caller never threatened her nor her son. The records showed that the mother only gave this testimony after her son was killed. The witness’ body was found in a deserted oversized alley. He had been shot 16 times and sustained a shot gun blast as well as bullet wounds. His mother said her son had been living in the streets because of his drug involvement and refusal to seek help and family guidance.
The court ruled that the witness’s grand jury testimony is admissible only if the prosecution is able to prove, by clear and convincing evidence, that the witness’ silence was procured through the misconduct of the defendant, that the defendant cannot then assert his confrontation clause rights in order to prevent the witness’ prior grand jury testimony from being admitted against the defendant.
Clear and convincing evidence is required in the receipt of the unavailable witness’ grand jury testimony because it can deprive the defendant of his constitutional right to confront the witness and places potentially unreliable hearsay testimony before the jury. The court recognized that this case involves an issue that has not yet been decided in courts. The court also recognized that it must weigh carefully the decision it will make in this case noting that if the testimony is admitted, the defendant will be deprived of his Sixth Amendment right to confront a crucial witness against him. If the evidence is excluded, the prosecution’s ability to proceed with the murder prosecution may well be seriously compromised. A stringent standard for measuring the sufficiency of circumstantial evidence is required to minimize a danger legitimately associated with circumstantial evidence — that the trier of facts may leap logical gaps in the proof offered and draw unwarranted conclusions based upon probabilities of low degree.
In this case, the court found that the prosecution has submitted circumstantial evidence to meet their burden of proving by clear and convincing evidence the defendant’s complicity in the murder of this witness.
The court, in this case, found that the inference of the defendant’s complicity in the murder of the witness does not flow logically and naturally from the facts adduced. The telephone calls made to the witness’s mother are a crucial link in the chain of circumstantial evidence; however, there is no direct evidence, through voice identification or otherwise, that the defendant himself, or someone acting upon his request, made the calls to the mother, the court noted.
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