No Foundation Provided for Use of a Notarized Statement for Impeachment (As a Prior Inconsistent Statement)

CurlyHost — Wed, 21 Jan 2015 23:13:00 +0000

The Second Department determined the trial court had properly prohibited the defense from cross-examining a complaining witness about a notarized statement the witness denied signing. The court explained the foundation-requirements for admitting a prior inconsistent statement:

The trial court properly precluded the defendant from cross-examining one of the complaining witnesses regarding a notarized statement which she had denied signing, and for which the notary could not be located. “[T]here must be a proper foundation laid for the introduction of prior inconsistent statements of a witness. In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his [or her] testimony at trial and his [or her] previous statements, he [or she] must first be questioned as to the time, place and substance of the prior statement” … . “If the witness does not admit that he [or she] signed the statement[ ], the genuineness of the signature can be proved by any one or in any legal way. Such proof enables the impeaching party to properly offer the paper in evidence as a part of his [or her] case or, with the permission of the court, at any other stage of the trial” … . Where, as here, the party seeking to admit the writing into evidence has not proven the genuineness of the signature, “the writing cannot be read to the jury, or, provided it can be produced, used as a basis for a cross-examination as to its contents until it is in evidence'” … . People v Haywood, 2015 NY Slip Op 00555, 2nd Dept 1-21-15

Defense Counsel Should Have Been Allowed to Refresh Witness’s Recollection With a Prior Statement/Conviction Reversed

Bruce Freeman — Thu, 12 Dec 2013 16:36:31 +0000

In a full-fledged opinion by Judge Smith, the Court of Appeals reversed defendant’s conviction because the trial judge refused to permit defense counsel to refresh a witness’s recollection with the witness’s prior statement. Defendant had the victim in a headlock during a fight. The victim subsequently died. A central issue at trial was how long defendant held the victim in a headlock. One witness (Flynn) gave a statement indicating the headlock lasted 6 to 10 seconds. The People did not call her. The defense called her and she testified the headlock could have lasted “a minute or so.” Defense counsel then attempted to refresh her recollection with her prior statement. The trial court didn’t allow it, saying the witness had “given no indication she needs her memory refreshed:”

When a witness, describing an incident more than a year in the past, says that it “could have” lasted “a minute or so,” and adds “I don’t know,” the inference that her recollection could benefit from being refreshed is a compelling one. More fundamentally, it was simply unfair to let the jury hear the “a minute or so” testimony -testimony damaging to the defense, from a defense witness’s own lips — while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question. The trial court suggested to defense counsel that this was “an effort to impeach your own witness,” but counsel had not yet got to the point of impeachment; she only wanted to refresh the witness’s recollection. And in any event, technical limitations on the impeachment of witnesses must sometimes give way, in a criminal case, to a defendant’s right to a fair trial (Chambers v Mississippi, 410 US 284 [1973]). People v Oddone, 236, CtApp 12-12-13

PRIOR INCONSISTENT STATEMENTS – New York Appellate Digest

No Foundation Provided for Use of a Notarized Statement for Impeachment (As a Prior Inconsistent Statement)

Defense Counsel Should Have Been Allowed to Refresh Witness’s Recollection With a Prior Statement/Conviction Reversed