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A hearing such as the Mechling court describes is exemplified by a pre-Crawford case, People v. Santiago, 2003 NY Slip Op. 51034U; 2003 N.Y. Misc. LEXIS 829.
An unmarried couple lived together for many years. The woman was subjected to repeated violence. She several times obtained orders of protection, which the defendant violated with impunity because she would not testify against him. In this instance the victim was again unwilling to testify and the prosecution sought to use the victim's Grand Jury testimony and other out-of-court statements. "The People's theory is that defendant's longstanding pattern of physical and emotional abuse toward [the victim] effectively forced her to become unavailable as a witness for the people at trial." Id. at *2.
The judge held a hearing at which extensive evidence of the defendant's on-going violence against the victim was detailed. Police officers testified to violence they actually witnessed and violence the victim described in several Incident Reports. Her hospital medical records were examined. The domestic violence counselor at the victim's precinct testified to several calls from the victim. Records from the Department of Corrections were reviewed showing that the victim visited the defendant in jail ten times and that he called her more than 100 times. The defendant testified and on cross-examination described these phone calls in which, while he did not threaten her if she testified, he made clear that she held the power to get him out by declining to do so. Finally, an expert witness testified as to why a woman so repeatedly and violently abused would refuse to testify against her abuser.
At the conclusion of this hearing the court stated:
"The complainant's decision not to cooperate with this prosecution is, without a doubt, strongly, if not totally influenced by the long history of domestic abuse that appears to affect all the decisions made by the complainant with respect to the defendant. It is true that the evidentiary consequences would be different in this case if the complainant's choice not to go forward were premised exclusively on feelings of love and loyalty to the defendant. However, the violent domestic history of these two people, and defendant's recent persistent importuning of the complainant to withdraw from this prosecution, have made clear that Angela R.'s choice with respect to continuing this prosecution was not made without fear of the defendant and the complex mix of emotions one might expect to find in a person suffering from Battered Women's Syndrome. Indeed, abuse of the complainant by the defendant is the recurrent theme in the relationship between these two parties. Thus, in my view, there is clear and convincing evidence that the defendant's misconduct procured the complainant's unavailability as a witness in this prosecution and, as a fitting consequence, the People should be allowed to present evidence of the complainant's prior statements and Grand Jury testimony regarding this incident to the trial jury."
— Id. at 52.
