The United States Constitution. Just saying that phrase for nearly everyone individuals causes, if even for a instant, a shortness of breath. This is the record that the United States of America was based on, the manuscript that has shaped our society, and which is almost certainly the most marvelous thing about it, the record that continues to shape our society and supply leadership this very day.
But it isn’t flawless. And the founders of the country knew it. And they knew there may approach a point when things needed to be clarified concerning 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 at present I desire to talk about a part of one of my preferred amendments to the Constitution, the sixth amendment. And the piece I want to talk about is the component called the confrontation clause, which requires that testimonial proof that is offered not in favor of you be done in open court and done such that you have the opportunity to examine them. This is conventionally referred to as the confrontation clause, and there has been a lot of examination surrounding it of late.
The rule sounds pretty easy, right? But, as with most legal concepts, when played out in real life, factual situations continuously happen that make an investigation of the rule enormously tough. And, so you know, the basic rule is this: the prosecution may not proffer testimonial facts not in favor of you except the witness is unavailable AND you have had a previous occasion to cross-examine them.
As you understand I am a Seattle DUI lawyer and Seattle criminal lawyer, and a lot of what I do is tutor my customers on what all of that means, so I am going to do my most excellent to do the equivalent here. First, testimonial evidence is principally proof that someone gives that a practical individual would assume would be used at a later time to create driving under the influence charges against someone. For instance, if your car was broken into and you called the cops and gave a police statement, the information you offer would be testimonial, for the reason that the objective of it is to account or testify about events that occurred in the past. To contradict that, non-testimonial proof typically provides information to someone at the point the occasion is happening and is completed with the principal intention of obtaining assistance. To modify the illustration, if you peered out your window and viewed someone breaking into your sedan and dialed 911 while the break-in was happening, this would be non-testimonial facts. The intent is to get aid, not to report what has already happened.
By the way, whether something is testimonial or not is often the principal disagreement between the prosecutor and the criminal defense attorney. It is what will commonly make a case for a prosecutor or break a case for a prosecutor. And this clarification on testimonial versus non-testimonial evidence is rather new.
If the evidence is testimonial, or given with the idea of reporting a crime or event that occurred in the past, then the prosecutor must be able to confirm the witness is unavailable to go to the next step. And unavailable isn’t used in this situation like it would usually be used. Just because someone can’t be located doesn’t make them unavailable. Unavailability occurs in four key circumstances: (1) the witness doesn’t have to testify since of a privilege (spousal privilege, for example); (2) the witness won’t testify notwithstanding a court order to do so; (3) the witness testifies to having a lack of memory on the subject matter; or (4) is unable to testify since they are deceased or physically or mentally incapable of testifying.
What doesn’t count as being unavailable, and which habitually gives rise to an reason on this subject between prosecutor and criminal defense attorney, is being unable to find the witness or subpoena them. And this happens regularly in the situation of domestic violence cases. After accusations are filed the prosecutor won’t be able to locate the victim and wants to bring in the 911 tapes of the call to police for help.
If, on the other hand, the court finds that the witness is unavailable, there is yet one more barrier to get over – the witness has to have been subject to cross-examination on the topic at some other point. For illustration, if there was a preliminary hearing and the victim showed up and testified and the defendant’s Seattle criminal defense attorney had a chance to cross-examine them, that testimony might come in notwithstanding the fact that the witness isn’t available to testify at trial.
Sounds pretty clear-cut, right? Let me provide you a hypothetical that may mix it up a little bit. Let’s say there is a guy and his girlfriend. They get into an disagreement and he pushes her down, breaks her cell phone, breaks her television, and then storms out of the abode. The girlfriend, very shaken up by this incident, calls 911 after boyfriend leaves, to get help and tell the cops what happened. Police arrive, she provides 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 in opposition to boyfriend, so she evades service of process to get her to court to testify in contradiction of boyfriend. The prosecutor wishes to allow in the 911 tape into facts. Does it come in?
It’s a tricky scrutiny, even for a veteran Seattle DUI attorney and Seattle criminal attorney because there is a blurry line between at what time a phone call for help ends and a call to details 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 driving under the influence or other Seattle criminal offense, make sure you choose an attorney that will fight for you, that will put the effort in to investigate your case, and will make every attempt to get you the best result possible.