A Word from Jason Goldman
Criminal appeals are essential to:
- preserving the integrity of the justice system, and
- providing a crucial safeguard when errors, misconduct, or constitutional violations may have affected the outcome of a trial.
This is separate and apart from a factual finding or a jury verdict. In a sense, it may be more important. The system only works correctly and a jury can only come to a fair verdict when all parties within the system acted within the bounds of the constitution.
Appeals ensure that no conviction stands without rigorous examination, especially when a person’s liberty is at stake. Protecting every defendant’s right to a fair trial and constitutional due process is not just a legal obligation—it is the foundation of public trust in the courts and a necessary check against the immense power of the state.
With this in mind, I was drawn to the matter of the People v. Kenneth Reed, whereby an individual had already been convicted by a jury prior to my representation.
Upon receiving his casefile and understanding more about the trial and about Mr. Reed himself, our firm learned that a grave injustice took place and that he had been wrongfully convicted. Despite being convicted of perhaps the most immoral and implorable crime in our system, we knew from a review of his file that this crime never took place.
The Trial
Mr. Reed was arrested on charges pertaining to sexual abuse. Worse, the allegations entailed the sexual abuse and assault of a minor. Yet, the evidence was wildly thin:
- There was little to no medical evidence that Mr. Reed had assaulted his step-daughter, who was only two years old at the time of the purported incident.
- There was no eyewitness.
- There was no earwitness.
- There was zero corroborating evidence.
Yet, due to the underlying motives of his soon to be ex-wife, a false allegation was lodged against Mr. Reed, who was quickly forced to defend himself both inside of court and outside of it with his reputation on the line.
Indeed, this case took place in a smaller town in upstate New York, where every individual was well-aware of the charges against Kenneth - many of them presuming his guilt despite a complete lack of evidence.
The most damaging “evidence” at trial came in the form of testimony from the two-year-old individual claiming assault (she had turned three right before trial).
Astonishingly, and as outlined in greater detail below and in the defense appellate brief, this minor took the stand and was permitted to testify freely and openly without taking an oath, without swearing to tell the truth, and without even being tested outside the purview of the jury as towards her ability to know right from wrong and a truth from a lie. Again, this minor testified as a three-year-old, and her testimony comprised the only “direct” evidence that Mr. Reed had assaulted her.
Following deliberations, Mr. Reed was convicted of sexually abusing this minor and was sent away to state prison as he was set to begin a sentence of more than ten years for a crime he never committed.
The Legal Challenge / Appeals Strategy
We raised several arguments within Reed’s appeal. However, the most pertinent issue by far was that of the underaged witness’s unsworn testimony. As mentioned, at the trial level, no one caught this glaring issue - not the judge, prosecutor, nor defense counsel.
Rather, the minor was permitted to testify as an unsworn witness despite the complete lack of a pre-trial hearing to determine her reliability, as strictly required by New York Criminal Procedure Law 60.20.
CPL § 60.20(2) requires that before a witness under age nine testifies, the trial court must conduct an inquiry to determine either:
- The witness understands the nature of an oath (for sworn testimony), OR
- The witness possesses “sufficient intelligence and capacity” (for unsworn testimony)
The court failed to conduct any such inquiry before this testimony.
In our brief, we cited extensive case law covering this requirement where the court must determine through questioning that the child:
- Knows the difference between truth and a lie
- Understands the necessity of telling the truth
- Appreciates the consequences of lying
- Has the ability to recall and relate prior events
In People v. Rose, the Second Department reversed convictions where a five-year-old testified without a preliminary examination, holding “it was an error for the trial court in this case to permit the unsworn testimony of the five-year-old complainant without first conducting a preliminary examination.”
In People v. Nissof, an eight-year-old was questioned extensively and “was able to differentiate between right and wrong, that she was well acquainted with her classroom activities and that she knew lying was a sin for which she would be punished.”
In People v. Cordero, a seven-year-old was asked to identify truths and lies, explain what happens if you lie, and demonstrated understanding that telling the truth was “important” in court.
The Decision
The appellate division, third department agreed with the defense and overturned Mr. Reed’s convictions, releasing him from custody. In its ruling, the Court stated the following:
“County Court's error in permitting the child to give unsworn testimony without conducting a proper inquiry under CPL 60.20 was not harmless given that the proof of defendant's guilt was not overwhelming (see generally People v Crimmins, 36 NY2d230, 241 [1975]). Although this issue is unpreserved, as defendant acknowledges, we deem it necessary to exercise our interest of justice jurisdiction to reverse and order a new trial (see CPL 470.15 [6] [a]). Based on our determination, the defendant's remaining assertions are academic.”