a husband and wife get in a fight; husband pushes wife, touches wife, or does something to wife; wife calls 911 and asks the cops to come over because her husband pushed her, shoved her, hit her, etc; cops come over, arrest husband, haul him off to jail; prosecutor charges husband with assault 4 domestic violence and asks for no contact order between husband and wife; husband is forced to get a Seattle DUI attorney to help him with his domestic violence charges; wife decides she doesn't want husband to go to jail or be convicted of a crime so she decides not to testify against husband and not to make herself available for court; prosecutor tries to enter as evidence the 911 tape of wife calling about husband; good Seattle criminal defense attorney files motion to exclude 911 tapes pursuant to Crawford.And the court has a hard time with this too because it is confronted with two sides of a coin. On the one side, the defendant has the constitutional right to confront witnesses against him (called the confrontation clause via the sixth amendment to the United States Constitution). On the other side, the judge is concerned with domestic violence and doesn't want to promote defendants encouraging their significant others not to testify against them so the case can be dismissed.
And, in addition to that, case law is not 100% clear on how to evaluate the situation, though it has become less fuzzy recently with some U.S. Supreme Court decisions coming down. Several years ago, the court would evaluate this situation by acknowledging the defendant's right to confront his accusers and evaluating the statements that the prosecution wanted to produce to determine their likelihood of credibility. As you might expect, this was a battle the defendant often lost. But a recent court case out of Washington State changed all that.
Now a three part evaluation is done to determine if the statements are admissible even though the person that made the statements won't be testifying and subject to cross-examination. Let's go through this at the DUI Attorney Seattle Blog. You need:
(1) the evidence must be testimonial;As you might expect, hurdles two and three are hard to overcome for a prosecutor. So, the battle between prosecutor and criminal defense attorney in Seattle often boils down to part one of the evaluation - if the evidence is testimonial.
(2) the witness must be unavailable; and
(3) the witness must have been subject to cross-examination before.
And let me clarify something really quickly too. If the evidence is NOT testimonial, it can come in so long as it meets some hearsay exception or is otherwise admissible. So, the prosecutor doesn't want the evidence to be testimonial, the DUI lawyer in Seattle wants it to be.
The definition of testimonial is this: if the information is about past events, is unrelated to some immediate threat of harm, and is of the type that would typically be taken in a police report or other report for future investigation or follow up, the information is testimonial. If the information relates to a pending emergency and would not be viewed by a reasonable person as being testimonial in nature then it is not testimonial.
According to this definition, the example above would probably be considered testimonial because the phone call came after the action had died down between them. In this case, the wife could have just called the police station or gone down to the police station and given the same report she gave over 911.
The fact that someone called 911 does not make it automatically non-testimonial, as most people's first reaction is to dial 911 when anything has happened that requires police presence. But, because it is close in time to the incident the prosecutor may have an argument that the statements are non-testimonial. That is why you need to have a good, articulate, knowledgable Seattle criminal defense attorney on your side to make the argument. It can mean the difference between winning your case and losing it.
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