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February 11, 2019 Practice Points

Second Circuit: State Court Erred in Allowing Murder-for-Hire Testimony

Incriminating testimony from a related case violated the Sixth Amendment’s Confrontation Clause.

By Sanford Hausler

In Orlando v. Nassau County District Attorney’s Office, a habeas action, the Second Circuit held that the state trial court had erred in allowing a police officer to testify that the defendant in a related case had told him that Orlando had hired him to kill Bobby Calabrese. The defendant in the related case had not testified in Orlando’s case. Orlando had argued that allowing the police officer to testify violated his rights under the Confrontation Clause. The district court had held that because the testimony was not offered for the truth, but for a collateral reason (to explain a change in Orlando’s story), allowing the police officer did not violate Orlando’s Sixth and Fourteenth Amendment rights. (The district court had issued an instruction to the jury that the testimony should not be considered to show that Orlando had hired the other defendant to kill Calabrese.) The district court issued a certificate of appealability. The Second Circuit held that the limiting instruction was not sufficient when testimony directing incriminating Orlando was given.

Sanford Hausler is of counsel with Cox Padmore Skolnik & Shakarchy LLP in New York, New York.

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