“Statement against penal interest, your honor.”
(Ben Stone said that at some point of every Law and Order episode)
I represented myself in a civil trial a few years ago. I didn’t bother with a lawyer in part because I misread the paperwork I received and thought I was being sued for $300, while the actual amount was $3000. The guy suing me did not use a lawyer either, and he had *absolutely no clue * what he was doing.
The first thing he said was hearsay, so I objected (meekly). My objection was sustained, and the magistrate explained to the guy that he couldn’t testify as to what others had said. The very next sentence out of the plaintiffs mouth was again hearsay, and I objected again.
After my fourth or fifth objection was sustained, the plaintiff told the magistrate the whole thing was “fucking ridiculous”. And the magistrate found for the defense.
/hijack.
It is hearsay here. Crawford v. Washington. A statement to a police officer, after the fact that “he punched me in the face” must be presented by the victim. If a police officer testifies that she said that he punched her in the face, it is hearsay and a violation of the confrontation clause.
It is not a present sense impression. The victim is making the statement many minutes after the altercation occurred. Party admission and “statement against penal interest” only applies to an out of court statement made by the defendant against his interests.
Even if a hearsay exception applies, the confrontation clause, per Crawford, disallows the testimony. The defense attorneys in pkbites’ jurisdiction are not doing their research.
Can you elaborate on that? What would be a good example of a present sense impression?
My brother is a California Superior Court Judge and I asked him about this. He said that at least in CA the victim doesn’t get to decide whether a prosecution happens or not, and that he has resided over cases where the victim recanted their story and prosecutors were still able to win a conviction based on other evidence… but, as others have said, it’s the prerogative of the DA to decide whether there is enough evidence to convict or not, not the alleged victim.
Sometimes the DA decides to move the case forward hoping the victim accepts a plea deal, so the fact that GZ’s girlfriend chose not to move forward shouldn’t have necessarily meant the case was dead… the DA would have to make that decision.
Typo? You mean “accused”, not victim…
Obviously a contemporaneous description would apply. For example, Bob and Dave are in a parking lot of a bar watching a patron stumble to his car and drop his keys. Dave exclaims: Look at how drunk that guy is! He shouldn’t be driving.
At said patron’s DUI trial, Bob can testify about Dave’s present sense observation of the patron stumbling to his car.
Same scenario, but, instead of making it contemporaneously, Dave 45 seconds later after they walk in and sit down: Did you see that guy in the parking lot stumbling to his car? He shouldn’t be driving. Probably still a present sense impression.
Not a present sense impression: Four hours later Dave says to Bob, “Hey, remember that guy when we first got here? He was stumbling and too drunk to drive.”
There is no bright line rule as to the time limit, but the courts err on the side of inadmissibility if the witness is remembering versus describing.
However, the 6th amendment question also applies in a criminal trial which hinges on whether the statement was “testimonial” or intended to be used at trial. If a police officer walked into the bar to question people about the patron, any such statement would likely be testimonial as the speaker knows that the purpose is for use at a later trial. A 911 call has been held not to be testimonial (and also a present sense impression, or an excited utterance) because the purpose is to communicate the emergency, not to set a record for trial.
Incorrect. For one thing, it falls under exception #3 as posted to before.
Also, remember as I posted before, if the victims recant says that he/she lied to the police about the battery the DA just threatens to charge filing a false report and/or obstructing.
They then are quick to say “What? I’m the victim and I could be prosecuted?”
Victim of what?
"My boyfriend punched me in the face!’
Thank you!
Usually victims don’t recant. They just go on and on about how they don’t want their partner prosecuted. That isn’t actually a recant.
And don’t forget, there are a lot of cameras and recording devices out there, further fogging up the rules of evidence.
But overall most of this is the exception rather than the rule. A lot of these get the deferred prosecution bs and in substantial battery cases we don’t need the victims testimony. Photos of a bashed in face with bruises on the fist of the perp is all it takes. They usually get a quick plea deal.
But the DA around here has been playing somehardball (finally!:rolleyes: ) with this horseshit since a guy that slipped through the DV cracks went into a salon and shot up the place, killing a couple of women.
“Present sense impression” is a hearsay exception under the Federal rules of Evidence. It means, the hearOR heard the declarant make a statement that reflects something that the other person was experiencing with their senses; they are and happen exactly as the event is occuring. That’s why its a present sense impression. .
Let’s say there was a car accident. As the car made a turn, a bystander heard a a shout, “slow down, we’re going too fast.” The bystander’s testimony of what he heard could be admissable under the present sense impression exception of the FRE, to prove the car was traveling too fast for conditions and the driver knew it.
By comparison, a police report taken after the accident which states the bystander told police, “I didn’t see the accident, but when they went around the turn, I thought they were going too fast” is probably hearsay. It’s after the fact, and it’s an opinion, and its not the sort of spontaneous statement that makes fabrication unlikely. (since he’s not under the stress of witnessing the accident, it’s not an Excited Utterance either).
Both PSI and Excited Utterance fall into the category of “res gestae” and are easy to confuse. An Excited Utterance only results from stressful circumstances and can be made after the fact, as long as the declarant is still under the influence of the stress of the event. A PSI doesn’t have to be, in itself, excited, it just has to be a perception spontaneously reported as it is occuring. Like if someone just testifies “I was at my teller station when I heard my manager say, ‘these signatures don’t look the same.’” Since neither the teller nor the manager are in a state of shock or stress its not a EU, but it might be an admissible PSI in the right circumstances.
Let me set up the situation to see if I am understanding you correctly. You respond to a DV call and notice that there has been a dispute. You separate the parties and ask the woman: “What happened here?” She replies: “My boyfriend punched me in the face.”
Are you suggesting that at the BF’s trial, you can take the witness stand and testify that “When I talked to the victim, she stated that her boyfriend had punched her”?
I suggest that you are not permitted to do that since 2004. Crawford v. Washington is my cite. No matter if it is a hearsay exception (and I contend that done apply) a defendant is entitled per the 6th amendment to confront witnesses against him. Per Crawford, putting a police officer on the stand to repeat testimonial allegations deprives him of that right.
If she takes the stand and claims that he never hit her, your testimony could be used to impeach her, but if she never takes the stand, your testimony never comes in.
Perhaps I misunderstood you, but if not, then defense lawyers in your area aren’t doing their job.
You can threaten all you want but how do you propose to go forward with a false reporting charge when you are contending that the report was correct? The evidence you have is that the report was not false. You going to charge with giving a truthful report?
Like I said before, this is the DA’s problem, not mine.
But if they have a 911 call 'my boyfriend punched me in the face", and then upon observation of injury they exclaim he punched them in the face, and then 72 hours late (the no contact period here) they tell the ADA he didn’t really punch them in the face, somewhere along the line the victim is lying.
No. I’m talking about later when the victim comes into the DA’s office and says “I don’t want him charged. He didn’t really punch me in the face”. The DA has been giving them something to think about. Were you lying then or are you lying now type thing.
This rarely happens, though. There is almost always other things to go on.
That had to do with spousal privilege. It’s not the same in all domestic cases.
By your perverted interpretation of hearsay charges of obstruction or even disorderly conduct would never result in a conviction because nothing ever said to a police officer could ever be repeated by the officer in court. This is simply not the case.
That exception only applies to statements by the accused, not to statements by the victim.
(a) A policy indicating that a prosecutor’s decision not to prosecute a domestic abuse incident should not be based:
- Solely upon the absence of visible indications of injury or impairment;
2. Upon the victim’s consent to any subsequent prosecution of the other person involved in the incident; or - Upon the relationship of the persons involved in the incident.
Wisconsin 908…01(4)
(4) STATEMENTS WHICH ARE NOT HEARSAY. A statement is** not**
hearsay if:
**(a) Prior statement by witness. The declarant testifies at the
trial or hearing and is subject to cross−examination concerning the
statement, and the statement is:
- Inconsistent with the declarant’s testimony**,
A victim can be subpoenaed and treated as a hostile witnesses.
But it rarely gets to this, especially in a DV case.
It did not have to do with spousal privilege. Read the case. That was one of the factors that made the wife unavailable to testify, but the same logic could have been applied to a girlfriend who didn’t show. Read the case.
Further, I didn’t say that everything said to a police officer is inadmissible. If the suspect said it, then it is admissible. If it was said to you in an emergency situation for the purpose of communicating the emergency, then it is probably not testimonial, and admissible.
I’m not sure of the exact scenario you are referring to with obstruction or disorderly conduct, but if you get on the scene and Jane says that Bill was acting disorderly in public, you can’t go to court and testify that Jane told you that Bill was acting disorderly in public.
Bill has a 6th amendment right to have Jane on the stand personally so that his attorney may cross examine her. That right is meaningless if you just repeat what she said. That is the crux of Crawford. DAs across the country have bitched about Crawford by prohibiting such hearsay testimony by police officers, and hurting DV prosecutions.
That says that the prior statement by the victim is not hearsay, if the victim is testifying. It doesn’t change the fact that it’s hearsay when someone other than the victim is testifying about the statement, such as a police officer.
So do you still think the system is broken, now that you’ve heard more about how it works?
There’s no subornation of perjury:
Q. “At the time the police came to your house, did you tell them that X happened?” A. “Yes”
Q. “One week later, did you tell the police that X didn’t happen?” A. “Yes.”
…
Argument: “Members of the jury, there’s your reasonable doubt.”
Obviously, assuming guilt from the outset simplifies a lot of the formalities of criminal procedure, but in theory, the jury’s not supposed to do that.
That’s exactly what it is saying.
If the victim at the scene tells me A, and then testifies B, I can testify that at the scene they told me A. That’s what this statute is saying. That’s what the inconsistency clause means.
This is a necessary law not so much in DV cases but more in homicide cases where witnesses change their story out of fear.