New York Federal Criminal Practice Blog
March 24, 2009

In Fairness, Dead Guys Speak: EDNY Judge Issues Some Notable Rulings on Admissibility of Hearsay

Guest Contributor Brian Larkin, Esq. writes:

Faced with the government’s overwhelming resources, decades of investigation material, and procedural advantages, the Federal Rules of Evidence can be a defendant’s last resort.  Usually, the defense strategy is to move to preclude, but in the RICO trial of mob hitman Charles Carneglia, the defense moved to introduce the kind of evidence that is usually excluded without argument – police reports, witness statements, and information about neighborhood rumors.  Citing the disparity of resources between prosecution and defense, EDNY Judge Weinstein granted the defense requests, adopting an approach that under other circumstances would chill the bones of most defense lawyers: “‘When in doubt, admit,’ relying on the jury . . . a highly intelligent, well-educated group of widely diverse backgrounds . . . to assess the evidence properly.”  As Judge Weinstein explains: “[c]onstitutional and evidentiary rules necessarily provide criminal defendants with greater protection – and leeway – in mounting a defense.”

Double Hearsay

Given the “tremendous resources and scores of government agents over several generations” devoted to the case, the sophisticated evidence gathering, and the “seduction of a large coterie of undercover and cooperating former gang members,” the government’s “heavy burden of proof and the presumption of innocence did not fully offset the prosecutor’s whip hand at trial,” Judge Weinstein’s decision noted in a series of rulings on hearsay evidence made in the recent trial of convicted mobster Charles Carneglia.  United States v. Carneglia, No. 08-CR-76 2009 WL 683719 (E.D.N.Y. March 11, 2009).  Carneglia’s trial of six weeks produced a record of 5,000 pages, 62 witness and hundreds of exhibits.

Among the issues decided in Judge Weinstein’s opinion was the admissibility of witness statements in police reports relating to the 1976 murder of Albert Gelb.  Gelb, a court officer, was shot in his car days before he was to testify against Carneglia in a gun possession prosecution.  The government charged Carneglia with this shooting.  The defense sought to admit statements from a police report made by eye witness Charles Ball, now deceased, who told police that a man about 5’ 9” – taller than the defendant – was the shooter.

Although, generally, police reports may not be admitted when offered by the government, the court points out that they may be introduced by the defendant under several hearsay exceptions provided in Rule 803, including the exceptions for business records and past recollection recorded.  The other hurdle for the defense was the admission of the actual statements contained in such a report, and specifically the description of the shooter.  Concluding that these statements were admissible variously as excited utterances, present-sense impressions and generally reliable, Judge Weinstein noted that “Ball described watching from his window while an individual fired several shots into Gelb's car.  The content indicates that the events he witnessed were startling. The Ball interview recorded in defense exhibit A-1 took place approximately one hour after the shooting of Gelb.”  The judge also applied the balancing test under Rule 403 and found the evidence admissible.

Notably, while Carneglia was convicted of charges relating to four murders, the jury ended deadlocked on the charge relating to the killing of Gelb.

Neighborhood Gossip

The same decision also documents an in limine ruling permitting the defendant to question a police detective about a “rumor” that existed at the time of another of the charged murders.  While this rumor indicated that a party other than the defendant had committed the murder of Michael Cotillo, the statement did not fit into any traditional hearsay exception.  Relying however on Rule 102 – the rules of evidence should be construed “to the end that the truth may be ascertained and proceedings justly determined,” Judge Weinstein ruled that he would permit questioning about these rumors.  Again, he highlighted the disparity between the resources and situations of the defense and the government, and further noted that the right to confront and cross-examine witnesses is a right of the defendant, not the government.

One Problem With Your Objection: You Killed the Witness

The right to confront a witness may be primarily a right of the defendant, but not when the defendant can be shown to have caused the witness to be absent.  In another evidentiary ruling relating to the same trial – and adding some neat symmetry to the ruling about Charles Ball’s observations – the court applied a little-used rule of evidence that permits the introduction of a dead man’s declarations against the person who killed him:  “The law allows the victim to rise from the grave, confronting his murderer in court with incorporeal testimony, preventing the criminal from frustrating justice through his wrongdoing.”  United States v. Carneglia,  No. 08-CR-76 2009 WL 595906 (E.D.N.Y. March 5, 2009).

At issue was the government’s offer of statements made by Gelb to two friends, as well as testimony in a state court preliminary hearing relating to a confrontation between Gelb and Carneglia.  Looking to Rule 804(b), the court quoted the statute’s hearsay exception for statements of a victim at the perpetrator’s trial: “Statements of an unavailable declarant are not excluded as hearsay when offered against a party who ‘has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.’  Fed.R.Evid. 804(b)(6).  This exception applies both to out-of-court statements and to in-court testimony,” the court held.


This case is an important acknowledgment of the enormous gulf between the government’s investigative resources and and those of the defense.  This disparity could be addressed by more liberal discovery rules in criminal cases, as discussed here previously.  It can also be addressed, as Judge Weinstein does in Carneglia, by easing the stringency of the rules of evidence in the context of defense applications.  It’s not a two-way street, however, as Judge Weinstein underlines repeatedly throughout the decision.  The jury may be trusted to give the defendant’s proffered evidence the credit it is due, but a new rule of evidence applicable to both sides that says “when in doubt, admit and trust to the jury’s good sense” would tip unevenly-balanced scales even further in the government’s favor.  While courts strive to provide both sides with a fair trial, it isn’t lost on anyone that the game belongs to the government.  

Lawyers: Curtis Farber, Kelley J. Sharkey  (defendant); AUSAs Amy Cohn, Cristina Posa, Daniel Brownell, Joey Lipton, Marisa Seifan, Mitra Hormozi, Roger Burlingame, Evan Norris.

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