Is it Possible for 911 Calls be Admitted into Evidence if the Witness is Gone?
The United States Constitution. Merely mentioning that phrase for most citizens causes, if even for a instant, a shortness of breath. This is the manuscript that the United States of America was started on, the document that has shaped our citizens, and which is in all probability the nearly all amazing thing about it, the manuscript that continues to influence our culture and offer support this very day.
Nevertheless it isn’t faultless. And the founders of the nation knew it. And they knew there might come a instance when things needed to be clarified concerning a quantity of of the provisions of the Constitution, or some of the things they forgot. That’s why we have amendments to the Constitution, some of which, like the first, fourth, and fifth, we all perhaps have heard of and comprehend pretty good.
However today I want to converse concerning a part of one of my favorite amendments to the Constitution, the sixth amendment. And the segment I want to chat about is the part dialed the confrontation clause, which requires that testimonial evidence that is offered in opposition to you be done in open court and done such that you have the chance to interrogate them. This is usually referred to as the confrontation clause, and there has been a lot of examination surrounding it lately.
The rule sounds pretty uncomplicated, right? But, as with nearly all legal concepts, when played out in actual life, factual situations continually come up that make an breakdown of the canon extremely difficult. And, so you know, the basic law is this: the prosecution could not testimonial evidence against you unless the witness is unavailable AND you have had a previous chance to cross-examine them.
As you know I am a Seattle DUI attorney and Seattle driving under the influence lawyer, and a lot of what I do is inform my customers on what all of that suggests, so I am going to do my best to do the equivalent now. First, testimonial evidence is in the end evidence that someone gives that a reasonable person would anticipate would be used at a later instance to bring criminal defense charges in opposition to someone. For example, if your sports car was broken into and you dialed the cops and provided a police give an account, the information you give would be testimonial, since the point of it is to report or testify in relation to events that occurred in the past. To counter that, non-testimonial evidence typically provides information to somebody at the moment the episode is happening and is completed with the main objective of getting help. To tweak the instance, if you peered out your window and saw someone breaking into your vehicle and dialed 911 at the same time as the break in was occurring, this would be non-testimonial evidence. The reason is to get aid, not to report what has by now happened.
By the way, whether something is testimonial or not is repeatedly the prime conflict between the prosecutor and the DUI defense lawyer. It is what will generally make a case for a prosecutor or break a case for a prosecutor. And this clarification on testimonial versus non-testimonial evidence if quite new.
If the evidence is testimonial, or given with the idea of reporting a crime or occurrence that occurred in the past, then the prosecutor must be able to explain the witness is unavailable to move to the next stage. And unavailable isn’t used in this situation like it would generally be used. Just for the reason that somebody can’t be located doesn’t make them unavailable. Unavailability happens in four major conditions: (1) the witness doesn’t have to testify since of a privilege (spousal privilege, for instance); (2) the witness won’t testify despite a court order to do so; (3) the witness testifies to having a lack of remembrance on the issue topic; or (4) is incapable to testify since they are dead or physically or mentally incapable of testifying.
What doesn’t qualify as being unavailable, and which frequently gives rise to an argument on this issue between prosecutor and criminal defense attorney, is being incapable to uncover the witness or subpoena them. And this occurs time and again in the circumstance of domestic violence cases. After charges are filed the prosecutor won’t be able to find the victim and wishes to introduce the 911 tapes of the call to police for aid.
If, on the other hand, the court finds that the witness is unavailable, there is still one more stumbling block to get over - the witness has to have been subject matter to cross-examination on the subject at a number of other stage. For example, if there was a preliminary hearing and the victim showed up and testified and the defendant’s attorney had a chance to cross-examine them, that testimony could come in despite the fact that the witness isn’t available to testify at trial.
Sounds pretty uncomplicated, right? Let me give you a theoretical that might mix it up a little bit. Let’s say there is a chap and his girlfriend. They get into an argument and he pushes her down, breaks her cell phone, breaks her television, and then storms out of the dwelling. The girlfriend, very shaken up by this incident, calls 911 after boyfriend leaves, to get aid and tell the police what occurred. Police come, she gives a statement, and they accuse boyfriend with Assault 4, Domestic Violence. But, after a bit, boyfriend and girlfriend make up, girlfriend doesn’t want to testify opposed to boyfriend, so she evades service of process to get her to court to testify in opposition to boyfriend. The prosecutor wants to admit the 911 tape into evidence. Does it come in?
It’s a tricky breakdown, even for a seasoned Seattle DUI lawyer and Seattle driving under the influence attorney because there is a blurry line between when a call for help ends and a telephone call to inform a felony begins. It is up to the court to determine when that line is crossed and the telephone call for help turns into the reporting of a criminal act.
If you are charged with a Seattle DUI or other Seattle criminal defense offense, make sure you choose an attorney that will fight for you, that will put the work in to investigate your case, and will make every effort to get you the finest outcome possible.