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Audiotaped Sworn Statement of Witness Admitted Because Defendant Caused Witness to Be Unavailable

After a Sirois hearing, the trial court found sufficient circumstantial evidence that the defendant had caused a witness’ unavailability and allowed in evidence (in the People’s case-in-chief) an audio recording of the witness.  In affirming, the Second Department wrote:

…[T]he Supreme Court properly admitted a sworn audiotaped statement from Timothy Dixon as evidence during the People’s case. A witness’s out-of-court statements may be admitted as part of the People’s direct case where the People “demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused [the] witness’s unavailability”…. “Recognizing the surreptitious nature of witness tampering and that a defendant engaging in such conduct will rarely do so openly, resorting instead to subterfuge, the court can rely on and the prosecution can use circumstantial evidence in making the requisite determination”…. People v Leggett, 2013 NY Slip OP 04028, 2nd Dept, 6-5-13

 

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Post-Offense “Bad Acts” Erroneously Admitted (Harmless Error) Elements of Breach of Fiduciary Duty