The grand jury testimony of a woman who decided not to testify in a domestic violence case after her boyfriend called her more than 300 times from jail can be introduced at his trial, a Brooklyn judge has ruled. Defendant Darrell Smith was indicted for five separate incidents of domestic assault. After his girlfriend had a change of heart about testifying, the prosecution moved to introduce her grand jury testimony during its direct case. Following a Sirois hearing, Supreme Court Justice Matthew J. D’Emic granted the prosecution’s motion.
In People v. Smith, 9235/09, Justice D’Emic noted that the right to cross-examine witnesses is the “principal means by which the believability of a witness and the truth of his testimony are tested.” But the judge said that “the law recognizes that when an accused procures the silence of a witness against him, he should not be permitted to gain from his wrong.”
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