Although the error was deemed harmless, the First Department determined defendant’s right to confront the witness against him was violated. The witness’s grand jury testimony was read to the jury as past recollection recorded. However, because the witness asserted his fifth amendment right to avoid self-incrimination, the truth of the grand jury testimony could not be tested by cross-examination. The First Department explained the relevant law:
Provided that a proper foundation is laid, grand jury testimony may be admitted as past recollection recorded, and its admission does not violate the Confrontation Clause where the witness testifies at trial and is subject to cross-examination …, because “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements” … . However, this may not apply when a witness appears at trial but invokes the Fifth Amendment … . Not every instance in which a witness invokes the privilege against self-incrimination will give rise to a Confrontation Clause violation; rather, “the Sixth Amendment is violated only when assertion of the privilege undermines the defendant’s opportunity to test the truth of the witness’ direct testimony” … .
Here, the witness asserted his Fifth Amendment rights and refused to answer questions that had a direct bearing on testing the truth of his grand jury testimony. Thus, the witness’s extensive assertion of his Fifth Amendment rights regarding the material facts “undermine[d] the process to such a degree that meaningful cross-examination within the intent of the [Confrontation Clause] no longer exist[ed]” … . People v Rahman, 2016 NY Slip Op 01750, 1st Dept 3-10-16
CRIMINAL LAW (RIGHT TO CONFRONT WITNESSES VIOLATED BY INTRODUCTION OF GRAND JURY TESTIMONY AS PAST RECOLLECTION RECORDED, WITNESS ASSERTED FIFTH AMENDMENT RIGHT TO AVOID SELF-INCRIMINATION)/EVIDENCE (CRIMINAL LAW, RIGHT TO CONFRONT WITNESSES VIOLATED BY INTRODUCTION OF GRAND JURY TESTIMONY AS PAST RECOLLECTION RECORDED, WITNESS ASSERTED FIFTH AMENDMENT RIGHT TO AVOID SELF-INCRIMINATION)