In many criminal prosecutions, the state has enough evidence to convict a person of the crime alleged out in the real world. But, in just as many criminal prosecutions the evidence that clearly shows your client's guilt is difficult if not impossible to get introduced in court. Sometimes it is because of hearsay, sometimes it is because of other evidentiary rules, and most of the time it is evidence that is critical to the case, and if it isn't introduced your client could very well walk.
One of those evidentiary rules concerns testimonial evidence. Testimonial evidence is kind of loosely defined as evidence that is used to prove that a criminal act occurred, and the evidence was gathered because it is anticipated that it could be used later at trial. For example, when you had your car broken into when you were in college and you lived in that seedy part of town and you called the police and gave a report, that is testimonial. Also, if you witnessed a crime, say a robbery or an assault or something, and when the police arrived you told them what you'd seen (or called them and told you what happened when it was over), you have provided the state with testimonial evidence.
Once it has been determined that the evidence is testimonial in nature, or that it was gathered to be used at a later time as evidence (and a reasonable person might think so), the prosecutor must call the witness to testify personally about what they said or did instead of introducing the document. The idea behind this is that the sixth amendment to the constitution provides everyone the right to confront their accusers, to question witnesses who present evidence against them, and to present their own evidence in their favor. If the police statement or the 911 call is introduced in lieu of actual testimony, then the defendant has been deprived of their constitutional right.
It is possible to get around this, but the prosecutor must show two things: first, that the witness is unavailable; and two, that the defendant had a prior opportunity to question the witness under oath. Now, unavailability doesn't refer to the witness just failing to show up. The prosecutor has to show the witness is refusing to testify for some reason, is dead or too sick to testify, or has been talked into not testifying by the defendant. And even then the defendant has to have had a chance to cross examine the witness under oath (usually by an attorney at a previous hearing). This doesn't happen often. If the prosecutor fails to meet these two requirements, then the evidence is excluded.
As you might expect, whether or not someone is unavailable or has provided prior testimony is pretty straight forward. Either you have or you haven't. The tough part is determining whether or not something is testimonial and subject to this rule of confrontation. Let me give you two examples and let's see if you can make the correct determination.
In the first example, there is a lady who calls 911. She is in a fight with her boyfriend and is calling for help. In part of the phone call she says things like "he is hitting me right now and I can't get him off of me," and "he just pushed me into the wall." After 20 to 30 seconds, though, the guy leaves and she proceeds to tell the cops what happened, what led up to the fight, and what kind of injuries she received. So, is this testimonial or not?
If you answered it's a trick question and some is and some isn't then you might want to consider becoming a criminal defense attorney if you ever switch careers. In the example, the part that is not testimonial are the statements where she is describing something that is happening to her at the moment she is describing it - where she is actually calling for help because something is happening to her. Regarding those statements, there is no doubt that they are being given not in a testimonial fashion, or explaining what happened and who was were, but in an attempt to get help for an ongoing exchange happening in real time. The part, however, where the guy has left and she starts describing the circumstances surrounding the fight should be ruled testimonial by the judge and excluded from evidence.
Okay, here's example number two. A guy is stopped, searched, and arrested for drug possession. At his trial, the prosecutor attempts to admit into evidence the report from the lab that describes the amount of substance taken from defendant and the type of substance. This was done without the testimony of the lab technician. The lab report was in the form of an affidavit submitted by the lab technician.
This one, admittedly, is a bit easier (though it took the United States Supreme Court to get the answer right). In this instance, an affidavit, which is sworn testimony, requires the attendance of the witness for the information to be admitted. Without the witness present, the defendant is not afforded his constitutional right to confront his accusers. And it makes no difference that the witness is not called as an eyewitness to the crime.
And to think, this is just one small piece of the evidentiary pie that must be consumed by criminal attorneys, defense attorney and prosecutor alike. This is why it is highly advised that you do not represent yourself in defense of your criminal charges. These issues, which may prevent your case from being proven, would be lost because you would have no idea they even exist (and the prosecutor is not going to tell you). In the end, this rule is a major win for criminal defendants throughout the country. The ability to confront witnesses against you is of critical importance to your defense and in many times is the difference between a guilty and not-guilty verdict.
No comments:
Post a Comment