It seems that Maryland Criminal Attorneys represent people charged in Domestic Violence Assaults with ever increasing frequency these days. As I have noted in the past, police and prosecutors seem to get more and more aggressive in charging and prosecuting these case by the day. In many of these Domestic Violence Assault cases, the alleged victim refuses to cooperate with the prosecution. Alleged victims will often recant the allegations that they made on the date of the incident, refuse to come to court, even when they have be summonsed 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 which often means if he goes to jail his family is devastated financially, or that the charges were fabricated in the first place. It is hard for some to believe that someone would fabricate charges against another person but unfortunately it happens all the time. And I believe that that is exactly what happened in a case I recently had had in the District Court for Baltimore County. Here are the facts:
In this case my client and his girlfriend got into an argument that, according to the her, became physical. At the time of the offense she claimed, both to the 911 operator and the police who responded, that the defendant had thrown her to the ground, strangled her and hit her several times in the face. The police noted only slight redness to her cheek and a very small amount of dried blood in one side of her nose. She stated that after the assault she left the location with their 3 year old son. She made the 911 call about 15 minutes after that 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 intelligible conversation. The officer noted in his report that she was crying, shaking and visibly upset. My client was later arrested and charged with second degree assault. A charge, which while classified as a misdemeanor, carries a maximum penalty of 10 years in prison. Shortly after my client was arrested, the alleged victim had a change of heart and decided not to cooperate with the prosecution. She ignored all attempts by the State to contact her and on the trial date did not show up in court.
A case involving a victim who refuses to either come to court or to testify for the prosecution, puts a prosecutor in a position where he or she has to decide whether to simply dismiss the case or to try figure out some way to prove it without the testimony of the alleged victim. Independent witnesses are infrequent in these types of cases as many if not most occur within the privacy of the home. If there are no independent witnesses, prosecutors may try to prove the case by attempting to introduce out of court statements, so called hearsay statements, made by the alleged victim or statements made by the defendant (these are not consider hearsay) at or near the time of the event. Because statements made by the defendant are not considered hearsay that are almost always admissible unless the police violate the defendant’s constitutional rights in the process of taking the statement. Conversely, out of court statements of the victim or other witness are almost never admissible unless they fall into one of a few very narrow exceptions to the hearsay rule.
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 introduced) by prosecutors, are statements made by a witness shorty 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 recent case, the prosecutor tried to introduce both the 911 tape and the out of court statements that the victim made to the responding police alleging that they both fell under the exceptions to the hearsay rule described above. My argument was that both statements were inadmissible for two reasons. First of all, I argued the statements do not meet the definition of an excited utterance. 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 personally 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.