The United States Constitution. Just mentioning that expression for most persons causes, if even for a moment, a shortness of breath. This is the document that the United States of America was based on, the document that has shaped our society, and which is probably the most marvelous thing about it, the manuscript that continues to affect our society and supply direction this very day.
But it isn’t faultless. And the founders of the country knew it. And they knew there may come a point in time when things needed to be clarified regarding some of the rules of the Constitution, or some of the things they forgot to include. That’s why we have amendments to the Constitution, some of which, like the first, fourth, and fifth, we all in all probability have heard of and discern pretty well.
But today I would like to have a discussion about a component of one of my much loved amendments to the Constitution, the sixth amendment. And the branch I want to have a discussion about is the piece called the confrontation clause, which requires that testimonial evidence that is presented against you be done in open court and done such that you have the chance to query them. This is traditionally referred to as the confrontation clause, and there has been a lot of deliberation surrounding it of late.
The law sounds pretty simple, right? But, as with most legal concepts, when played out in real life, factual situations continuously appear that make an scrutiny of the rule tremendously demanding. And, so you know, the main rule is this: the prosecution may not proffer testimonial facts in contradiction of you unless the witness is unavailable AND you have had a prior occasion to cross-examine them.
As you understand I am a Seattle DUI attorney and Seattle criminal attorney, and a lot of what I do is instruct my customers on what all of that means, so I am going to do my most excellent to do the same here. First, testimonial evidence is fundamentally facts that someone gives that a reasonable person would be expecting would be used at a later time to create drunk driving charges against someone. For illustration, if your car was broken into and you called the cops and provided a police report, the information you offer would be testimonial, for the reason that the principle of it is to details or testify about proceedings that happened in the past. To contradict that, non-testimonial evidence normally provides information to someone at the moment in time the occasion is happening and is ended with the principal aim of obtaining aid. To tweak the instance, if you peered out your window and spotted someone breaking into your vehicle and dialed 911 while the break-in was happening, this would be non-testimonial evidence. The principle is to get help, not to report what has already occurred.
By the way, whether something is testimonial or not is regularly the key quarrel between the prosecutor and the criminal defense attorney. It is what will typically make a case for a prosecutor or break a case for a prosecutor. And this clarification on testimonial versus non-testimonial facts is fairly new.
If the evidence is testimonial, or given with the idea of reporting a crime or incident that occurred in the past, then the prosecutor must be able to prove the witness is unavailable to move to the next step. And unavailable isn’t used in this circumstance like it would usually be used. Just because someone can’t be found doesn’t make them unavailable. Unavailability occurs in four major circumstances: (1) the witness doesn’t have to testify because of a privilege (spousal privilege, for instance); (2) the witness won’t testify in spite of a court order to do so; (3) the witness testifies to having a lack of memory on the subject matter; or (4) is incapable to testify since they are dead or physically or psychologically unable of testifying.
What doesn’t add up as being unavailable, and which regularly gives rise to an line of reasoning on this subject between prosecutor and criminal defense attorney, is being incapable to locate the witness or subpoena them. And this occurs often in the situation of domestic violence cases. After charges are filed the prosecutor won’t be able to detect the victim and wants to bring in the 911 tapes of the call to law for help.
If, however, the court finds that the witness is unavailable, there is still one more obstacle to get over – the witness has to have been subject to cross-examination on the topic at some other stage. For illustration, if there was a preliminary hearing and the victim showed up and testified and the defendant’s Seattle criminal defense lawyer had a chance to cross-examine them, that testimony might come in notwithstanding the reality that the witness isn’t available to testify at trial.
Sounds pretty clear-cut, right? Let me provide you a hypothetical that might mix it up a little bit. Let’s say there is a guy and his girlfriend. They get into an fight and he pushes her down, breaks her cell phone, breaks her TV, and then storms out of the house. The girlfriend, very shaken up by this incident, calls 911 after boyfriend leaves, to get aid and tell the cops what occurred. Police arrive, she gives a declaration, and they accuse boyfriend with Assault 4, Domestic Violence. But, after a bit, boyfriend and girlfriend make up, girlfriend doesn’t want to testify in opposition to boyfriend, so she evades service of process to get her to court to testify critical of boyfriend. The prosecutor wishes to admit the 911 tape into proof. Does it come in?
It’s a tricky breakdown, even for a experienced Seattle DUI attorney and Seattle criminal attorney because there is a blurry line between at what time a phone call for assistance ends and a call to description a crime begins. It is up to the court to resolve when that line is crossed and the call for help turns into the reporting of a crime.
If you are charged with a Seattle drunk driving or other Seattle criminal offense, make sure you choose an lawyer that will battle for you, that will put the labor in to study your case, and will make every effort to get you the top ending doable.