The People of the State of New York move to dismiss the above-captioned indictment, which charges the defendant with sexually assaulting the complainant at a hotel in midtown Manhattan on May 14, 2011. The crimes charged in the indictment require the People to prove beyond a reasonable doubt that the defendant engaged in a sexual act with the complainant using forcible compulsion and without her consent. After an extensive investigation, it is clear that proof of two critical elements - force and lack of consent - would rest solely on the testimony of the complaining witness at trial. The physical, scientific, and other evidence establishes that the defendant engaged in a hurried sexual encounter with the complainant, but it does not independently establish her claim of a forcible, nonconsensual encounter. Aside from the complainant and the defendant, there are no other eyewitnesses to the incident. Undeniably, then, for a trial jury to find the defendant guilty, it must be persuaded beyond a reasonable doubt that the complainant is credible. Indeed, the case rises and falls on her testimony.
At the time of the indictment, all available evidence satisfied us that the complainant was reliable. But evidence gathered in our post-indictment investigation severely undermined her reliability as a witness in this case. That an individual has lied in the past or committed criminal acts does not necessarily render them unbelievable to us as prosecutors, or keep us from putting them on the witness stand at trial. But the nature and number of the complainant’s falsehoods leave us unable to credit her version of events beyond a reasonable doubt, whatever the truth may be about the encounter between the complainant and the defendant. If we do not believe her beyond a reasonable doubt, we cannot ask a jury to do so n1This motion explains the basis for our request that the indictment returned by the grand jury be dismissed. It does not purport to make factual findings. Rather, we simply no longer have conñdence beyond a reasonable doubt that the defendant is guilty.
We have summarized below the circumstances that have led us to this conclusion. This is not a case where undue scrutiny or a heightened standard is being imposed on a complainant. Instead, We are confronted with a situation in which it has become increasingly clear that the complainant’s credibility cannot withstand the most basic evaluation. In short, the complainant has provided shifting and inconsistent versions of the events surrounding the alleged assault, and as a result, we cannot be sufficiently certain of what actually happened on May 14, 2011, or what account of these events the complainant would give at trial. In virtually every substantive interview with prosecutors, despite entreaties to simply be truthful, she has not been truthful, on matters great and small, many pertaining to her background and some relating to the circumstances of the incident itself. Over the course of two interviews, for example, the complainant gave a vivid, highly-detailed, and convincing account of having been raped in her native country, which she now admits is entirely false. She also gave prosecutors and the grand jury accounts of her actions immediately after the encounter with the defendant that she now admits are false. This longstanding pattern of untruthfulness predates the complainant’s contact with this Office. Our investigation revealed that the complainant has made numerous prior false statements, including ones contained in government filings, some of which were made Lmder oath or penalty of perjury. All of these falsehoods would, of course, need to be disclosed to a at trial, and their cumulative effect would be devastating.
Finally, we have conducted a thorough investigation in an effort to uncover any evidence that might speak to the nature of the sexual encounter between the complainant and the defendant. All of the evidence that might be relevant to the contested issues of force and lack of consent is simply inconclusive.
We do not make this recommendation lightly. Our grave concerns about the complainant’s reliability make it impossible to resolve the question of what exactly happened in the defendants hotel suite on May 14, 2011, and therefore preclude further prosecution of this case. Accordingly, we respectfully recommend that the indictment be dismissed.