Defendant’s Right to Testify Before the Grand Jury Violated

A defendant has a right to testify before the Grand Jury.  In People v. Maddox (Sup. Ct. Monroe Co. 12/1/2008), Justice Egan concluded that the defendant's right was violated because the prosecutor directed the examination, never permitting the defendant to tell his side in narrative form.

The court summarized the Grand Jury testimony:

After the oath and acknowledgment of the waiver of immunity,
Defendant's testimony began. The prosecutor began the questioning by
stating to Defendant: "I'll give you the floor so you can explain
what you were doing and where you were on a particular date, time and
location, okay?" (Tr. p. 47, lines 6-9). After drawing Defendant's
attention to the date in question, the prosecutor told Defendant: "I'm
going to bring your attention now to – – it's going to be Wednesday,
September 17, at approximately 11:08 p.m.. I'm simply going to ask you
if you know where you were on that night, and if you were with anyone,
explain who you were with, where you were at; and if you were in a
motor vehicle, explain how it is you got there, and what happened that
night shortly after 11 o' clock . Okay?". (Tr.p. 47, lines 11-19).

After this introductory matter, the prosecutor, rather than
permit the Defendant to offer a narrative of events in the day in
question, proceeded to question the Defendant on certain pedigree
matters and his putative associations with co-defendants in the case.
Nine pages of transcript later the questioning finally turned to the
events in question. All the while, the prosecutor was directing the
manner of questioning and the topics. At page 56 of the transcript the
prosecutor finally began to direct the testimony of the Defendant
concerning the transaction at issue. The questioning was interspersed
with imperatives and questions such as: "[s]o describe what happened
next? [Tr. p. 56 , l. 9] and "[a]re you familiar with the area?". The
questioning continued until page 75 of the transcript. Most of the mode
of questioning during the balance of Defendant's testimony was a hybrid
of direct and cross examination. There were two attempts at impeachment
of Defendant's testimony with prior criminal convictions. The
prosecutor's general tone of questioning was vigorous and at times
confrontational all in the absence of Defendant first having an
opportunity to deliver a narrative in his own words.

The court found that this violated CPL § 190.50:

Criminal Procedure Law (hereinafter, "CPL") §190.50(5)(b) requires that
where a person has executed a waiver of immunity, "such person must be
permitted to testify before the grand jury and to give any relevant and
competent evidence concerning the case under consideration." See
CPL §190.50(5)(b). A defendant testifying before a grand jury must be
given an opportunity to give his own version of the events before being examined by the prosecutor. People v. Smith,
84 NY2d 998, 1000 (1994). Not only must a defendant be accorded an
opportunity to give his own version of events first in narrative
fashion, but he must also be given that same opportunity without being interrupted. People v. Lerman, 116 AD2d 665, 666 (2nd Dept. 1986).

Lesson learned for prosecutors?  When a defendant testifies, provide him with an opportunity to tell his side of the story before asking questions.  It might be helpful to conclude a defendant's Grand Jury testimony with a question like, "Is there anything else about the incident in question that you would like to say?"  Although such a question might invite a rambling plea for mercy, it nevertheless helps to avoid the type of problem discussion in this case.  (LC)

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