Maryland Criminal Attorneys represent people accused of domestic violence assaults more and more often these days. As I have noted in the past, the numbers of these cases that are being pursued by the police and prosecutors have increased exponentially over the last decade and a half after the acquittal of OJ Simpson of the murder of his wife.
Very often in domestic violence cases the alleged victim refuses to cooperate with the prosecution. Alleged victims will often recant their allegations, evade service of process and refuse to appear in court or, if the couple is married, invoke the marital privilege and refuse to testify. There are many reasons why alleged victims do this including that the couple has reconciled their relationship, the defendant is the primary breadwinner in the family and his incarceration would cause economic hardship for the family, or that the charges were fabricated in the first place which, believe it or not, happens quite often and, I believe, it is what happened in the case I had this week in the District Court for Baltimore County.
The facts of the case were that the alleged victim and the defendant were in an argument that, according to the victim, became physical. She claimed at the time of the offense, both to the 911 operator and the responding police officers, that the defendant had thrown her to the ground, strangled her and and struck her in the face. The officers noted slight redness to her cheek and a very small amount of dried blood in one of her nostrils. She claimed that after the assault she left the location in her car with the couple’s 3 year old son. She made the 911 call about 15 minutes later and met the police miles from the scene (and away from the defendant) in a parking lot. She was heard to be crying on the 911 tape but was not hysterical or unable to carry on an intelligent conversation. The officer noted in his report that she was crying, shaking and visibly upset. My client was later charged with second degree assault. The State was unable to serve the alleged victim with a summons and she did not appear in court.
A case involving a recanting victim or a victim who refuses to testify, leaves the prosecutor in a position where he or she has to decide whether to drop the case or to try to prove it without the testimony of the alleged victim. Occasionally in these cases there are independent witnesses that the prosecutor can call to prove their case but this is relatively rare as most domestic violence incidents occur behind closed doors. If there are no independent witnesses, prosecutors sometimes attempt to prove their cases by trying to introduce out of court statements made by the alleged victim or the defendant at or near the time of the event, in conjunction with testimony and/or photographs taken by the crime lab of the scene and injuries to the alleged victim.
Out of court statements made by the defendant are not hearsay but out of court statements made by the alleged victim obviously are, so the State has to argue that they are admissible notwithstanding the fact that they are hearsay, because they fall into one the recognized exceptions to the introduction of hearsay evidence. The two exceptions that the prosecutors typically rely on are known as “excited utterances” and “present sense impressions”.
Statements that fall into the latter category are relatively straightforward to understand. They are statements that are made as the events are unfolding. These statements most often have been overheard by a witness or bystander or were made to a 911 operator as the person is actually experiencing the event. Excited utterances, which are far more commonly introduced (or at least attempted to be) by prosecutors, are statements made by a witness after a “startling event” but while the person is still under the influence of that event. These statements must be made very close in time to the startling event and must not be the product of interrogation for testimonial purposes.
The courts have ruled that this does not mean that any statement made in response to a question such as “what happened” is per se inadmissible, but the purpose of the interrogator must be to resolve an emergency situation and not to preserve statements for future introduction as evidence against the defendant. The reason for this is that introduction of these statements violate a defendant’s right to confront and cross examine his or her accusers that is guaranteed in the Sixth Amendment to the United States Constitution.
In my case this week, the State attempted to introduce both the 911 tape and the statements that the alleged victim made to the police officer. I argued that the statements were inadmissible for two reasons. First, I argued that the statements were not excited utterances. The statements were made at least 15 minutes after the conclusion of the “startling event” which if it really occurred the way she described, would be upsetting to be sure, but was hardly the type of event that would cause one to be so overwhelmed as to be unable to think clearly enough to contemplate or to scheme to fabricate evidence such as watching the murder of a loved one or personlly sustaining life threatening injuries. Moreover, I argued, while she could clearly be heard to be crying on the tape, she was not hysterical, was able to follow the 911 operator’s instructions, safely operate a motor vehicle and seemed coherent and rational.
Second, even if the court ruled that the statements could be properly admitted as an excited utterance, the statements were clearly testimonial in nature and therefore violated the standard set out by the Supreme Court in Crawford v. Washington. The statements in this case were made to state agents (the 911 operator and a police officer), one of the statements was recorded, they were made more than 15 minutes after the fact and it was clear that the emergency situation (if there ever was one) had passed and she was no longer in danger. The statements were made, I concluded, in response to multiple questions by these state agents and were clearly designed to elicit statements for use at a trial later and not to resolve a current emergency situation as one no longer existed.
The Judge agreed. In fact, he lectured the prosecutor on the fact that the right to cross examine and confront one’s accusers is one of the fundamental liberties upon which this nation was founded and scolded her that this case was, “not even close”. Obviously, the evidence was suppressed and my client was found not guilty.