Seattle Criminal Attorney | Another Testimonial Case
If you’ve read up on the posts here, then you have learned a little bit about testimonial evidence and its effect on the outcome of criminal cases. Because the decisions affecting testimonial evidence are relatively new, there are still cases being decided that are clarifying the rules for me as a Seattle criminal attorney. And we had a new one come down this week.
State v. Pugh is a case much like most of the other cases regarding testimonial evidence, at least in fact pattern. Here, the victim called up 911 while the defendant was beating on her. She asked for help from the 911 operator. The 911 operator asked if he was still there and the victim said he was still around. There is even a portion of the call where he is beating her.
Defendant is arrested for several different things, including domestic violence assault. At trial, the victim decides not to testify (for whatever reason) and the prosecutor sought to introduce the 911 tapes as evidence that defendant committed the crime. The defendant objected, arguing that the evidence was testimonial and couldn’t be admitted because the witness wasn’t unavailable and hadn’t been subjected to cross-examination previously.
The court ran down the traditional analysis. It looked at the statements of the victim and whether they were testimonial, meaning it was given with the thought that it would be used to help out an investigation of a crime, or nontestimonial, meaning it was given with the thought that aid was needed and was being requested.
But the Seattle criminal attorney in this case threw in a monkey wrench. He argued that the Washington State Constitution was even stricter than then 6th amendment, that the language, which includes the right to a “face to face confrontation” is literal and must be followed.
As you might expect, the court shot this theory down, finding that the court has already recognized hearsay rules under the constitution and that excited utterances as a legal theory are alive and well here. So, as it usually goes, one good argument shot down by one Court leaning toward thwarting the constitutional rights of individuals.
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