People v. Smart, 23 N.Y.3d 213

Background

On Oct. 3, 2008 Floyd Smart, Robert Verstreate, and Jane Doe planned a burglary; Doe testified to a grand jury and received transactional immunity for the acts she described.
After indictment, Doe absconded while on bail. The People sought to admit her grand jury testimony at trial, alleging Smart had procured her unavailability by threats and chicanery.
Recorded jailhouse calls showed Smart threatening Doe ("I’m going to wring your fucking neck"), urging her to flee, and directing his mother to hide or transport Doe out of state; his mother discussed watching over Doe.
Midway through the Sirois/Geraci hearing, Doe was returned to custody and, appearing in court, asserted the Fifth Amendment and refused to testify; her counsel said she would not testify regardless of immunity and cited no self-incrimination concern as the sole reason.
The trial court found by clear and convincing evidence that Smart (with his mother’s assistance) procured Doe’s unavailability and admitted her grand jury testimony; Smart was convicted and his conviction was affirmed.
The Court of Appeals affirmed, holding the People proved forfeiture-by-wrongdoing by clear and convincing evidence and that circumstantial proof and timing supported causation.

Issues

Issue	People’s Argument	Smart’s Argument	Held
Whether defendant forfeited confrontation right by procuring witness’s unavailability so grand jury testimony is admissible	Record shows threats and efforts to hide Doe motivated her absence; clear and convincing proof supports forfeiture	Doe lawfully invoked Fifth; no direct proof Smart caused her refusal; grand jury testimony inadmissible absent direct admission of coercion	Held: Forfeiture applies — People met clear and convincing standard via recordings, timing, counsel’s statements, and circumstantial causation
Standard of proof/causation required to admit prior testimony under Geraci/Sirois	Clear and convincing evidence that defendant engaged in misconduct aimed at preventing testimony and that misconduct significantly caused unavailability; causation may be inferred from circumstantial evidence and timing	Requires direct evidence or witness admission linking defendant’s misconduct to witness silence	Held: Clear and convincing proof suffices; causation can be inferred from circumstantial evidence and temporal sequence
Whether a witness’s lawful basis for asserting the Fifth defeats forfeiture	Forfeiture focuses on whether defendant procured unavailability, not whether the witness would lawfully assert the privilege absent misconduct	If the witness lawfully invokes Fifth, that defeats admission unless direct proof defendant caused it	Held: A lawful basis to invoke the Fifth does not prevent forfeiture if defendant’s bad acts produced the unavailability
Whether the court must call the witness or get direct testimony when witness appears and takes the Fifth	Counsel’s representations and surrounding evidence may be adequate; no ritualistic requirement to demand the witness repeat counsel’s statements	Once witness is present and invokes Fifth, the court must probe her reasons and cannot rely solely on prior circumstantial proof	Held: Court may rely on counsel’s representations and the hearing record; here the timing, recordings, and counsel’s statements justified finding forfeiture even after the witness appeared

Key Cases Cited

People v Geraci, 85 N.Y.2d 359 (1995) (forfeiture-by-wrongdoing doctrine; defendant who procures witness’s unavailability cannot invoke confrontation)
People v Maher, 89 N.Y.2d 456 (1997) (clarifies clear-and-convincing standard and that defendant’s intent need only be at least in part to prevent testimony)
Sirois (Matter of Holtzman v Hellenbrand and Sirois), 92 A.D.2d 405 (2d Dept. 1983) (permissive, pragmatic framework for inferring causation from misconduct and timing)
Giles v. California, 554 U.S. 353 (2008) (forfeiture doctrine discussion in confrontation clause context)
Davis v. Washington, 547 U.S. 813 (2006) (Confrontation Clause principles regarding admissibility of out-of-court statements)
People v Cotto, 92 N.Y.2d 68 (1998) (trial court best positioned to weigh competing inferences at forfeiture hearing)
People v Hamilton, 70 N.Y.2d 987 (1988) (distinguishes cases where People produce no evidence defendant threatened the witness)
People v Bosier, 6 N.Y.3d 523 (2006) (forfeiture applies to acts by others with defendant’s knowing acquiescence)
People v Wrotten, 14 N.Y.3d 33 (2009) (importance of confrontation right and reliability through adversarial testing)
People v Rawlins, 10 N.Y.3d 136 (2008) (Confrontation Clause framework under state constitution)