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A Criminal Defense Attorney's View
Hearsay is defined as " a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." (Texas Rules of Evidence 803 (2)). In layman's terms, hearsay occurs when a witness testifies regarding what they heard someone else say. Hearsay is inadmissible at trial; however, there are many exceptions to the hearsay rule.
In domestic violence cases hearsay evidence is often admitted as substantive evidence of guilt. It is typical for courts to allow a police officer to testify to the officer's memory of what the victim supposedly said at the time of the incident. This testimony is admitted even though the victim's alleged statements were not recorded by the officer. Rather, the officer is testifying from notes in the police report made several hours or even days after the arrest. This testimony is admitted as an "excited utterance."
An excited utterance is defined as "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." (Texas Rules of Evidence 803 (2)). It is common for a statement to be admitted at trial as an excited utterance even if the incident occurred several hours prior to the officer obtaining the statement from the victim. The hearsay exception of excited utterances also allows the state to play the recorded "911" call from the victim to the jury. Whether an "excited utterance" is admissible is within the discretion of the trial court judge.
A criminal defense attorney will object to hearsay testimony as a violation of the defendant's right to confront their accuser at trial. When a witness at trial is reciting hearsay testimony, the defendant cannot cross-examine or confront the person who actually made the statement. The person who made the statement, called the declarant, is not the witness on the stand. The United States Constitution and state constitutions guarantee the defense the right to confront the accuser at trial. Generally speaking, an objection on the grounds the confrontation clause was violated is overruled by the trial court judge if the state can prove a hearsay exception.
On March 8, 2004, the United States Supreme Court decided the case of Crawford v. Washington, 2004 U.S. Lexis 1838, 72 U.S.L.W. 4229. The court interpreted the Sixth Amendment "Confrontation Clause" of the United States's Constitution. In Crawford, the Court found the confrontation clause was violated when a recorded statement by Crawford's spouse was played for the jury. Crawford's wife did not testify at trial under Washington's "Husband-Wife" privilege.
The case may not impact traditional hearsay rule exceptions. The Court made a distinction between "testimonial" and "non-testimonial" hearsay. The spouse in Crawford, had also been arrested and gave her statement while in police custody. The Court found those circumstances to be testimonial hearsay, inadmissible as a violation of the confrontation clause when the recording was played at trial and she did not testify.
Crawford does not cover "non-testimonial" statements such as when a spouse makes incriminating statements against the alleged battering spouse on a "911" call. Additionally, Crawford's ruling may not apply to "excited utterance" hearsay statements made by the victim when police first arrive on the scene. That question will be addressed by state appellate courts. With anticipated pressure from the Family Violence Industry, state appellate courts may take a very narrow view of Crawford's holding and allow hearsay statements into evidence.
A new strategy is being urged by the state in domestic violence cases, particularly when the alleged victim has recanted or changed her story. The prosecutors are borrowing concepts from child sexual assault cases and attempting to expand them to family violence cases. In many states, prosecutors in child abuse cases can offer expert testimony that a child is suffering from the "Child Sexual Abuse Accommodation Syndrome "(C.S.A.A.S.). This syndrome is based on the theory that abused children will exhibit certain character traits indicative of abuse.
Prosecutors in adult assault cases are now attempting to show a victim who recants or changes the original story is suffering from "Battered Woman's Syndrome." The new prosecutorial trend is to use the syndrome to explain why a victim of domestic violence would recant. The state wants the jury to hear expert testimony explaining that a victim is likely to recant, not due to the absence of violence, but because she is a battered woman.
"Battered Woman Syndrome describes a pattern of psychological and behavioral symptoms found in women living in battering relationships." People v. Romero, 13 Cal Rptr 2d 332, 336 (Cal App 2d Dist. 1992). The nation's leading expert on the syndrome, Dr. Lenore Walker, states:
There are four general characteristics of the syndrome:
- The woman believes that the violence was her fault.
- The woman has an inability to place the responsibility for the violence elsewhere.
- The woman fears for her life and/or her children's lives.
- The woman has an irrational belief that the abuser is omnipresent and omniscient.
Walker, found nine typical characteristics of the battered wife:
Dr. Lenore Walker, 'The Battered Woman Syndrome' (1984)
Slowly the syndrome is appearing in domestic violence courts throughout the country as a means to strengthen the state's case against the accused. The majority of courts are disallowing expert testimony without specific proof the victim in that case suffers from the syndrome. However, it is anticipated this syndrome will soon gain the same status as C.S.A.A.S. and become a routine prosecutorial tactic against defendants in domestic violence cases.
With syndrome evidence, the state replaces its lack of real proof with speculation. Expert testimony stating the wife is a battered woman is fatal to the falsely accused. A wife testifying for the defendant describing the incident may tell the jury she exaggerated or was the instigator herself. The prosecution in rebuttal will call an expert witness to inform the jury that she is testifying in a manner consistent with being a battered spouse and merely protecting her husband.
A variety of state law cases indicate this prosecutorial trend seeking to introduce evidence the victim belongs to the class of persons known as "Battered Woman's Syndrome":
Defendants have been convicted of domestic violence without any physical evidence introduced against them at trial. In many cases, the argument resulting in the arrest was so slight the alleged victim does not need or seek medical treatment. Frequently, the accused is convicted for intentionally causing "bodily injury" without any testimony from a qualified medical expert. The victim's testimony alone that she felt pain or suffered bodily injury is sufficient for a conviction.
This testimony can be supported by police officer testimony of having observed red marks, scratches, or bleeding, to substantiate the decision to arrest. These claimed injuries may or may not be photographed and preserved for trial. Commonly, a defendant is convicted of causing bodily injury without medical or photographic evidence.
The creation of the Family Advocacy Center is anticipated to follow their Child Advocacy Center predecessors. Medical nurses and employees, whose livelihoods depend upon their contracts with the centers, will give opinions that a victim was abused. Failure to give the right opinion will mean the contract is not renewed. These opinions from medical "experts" will say the findings are "consistent with" abuse. Of course, "consistent with abuse" is not a true medical diagnosis. This testimony, when attacked by the defense attorney will reveal the findings given, as "consistent with abuse" are just as "inconsistent with abuse".
Instead of physical and medical evidence, the falsely accused are now and will continue to be convicted upon theories, inferences, and speculation. Prosecutors secure convictions by manipulating the juries' fear of releasing a battering spouse back into the home. This fear will be combined with hearsay, expert witness "syndrome evidence", misleading medical testimony, and the biased opinions of family advocacy investigators. Immediately after arrest the alleged victim will be hustled to the Family Advocacy Center to be interviewed. At the center, a "forensic interviewer" with the help of state agents will orchestrate a video taped interview. The prosecutor and police detective will be monitoring the process through a two-way mirror in the adjacent room. The interviewer will be in communication and fed questions from the agents through a wireless microphone earpiece. The interviewer will question the alleged victim when she is still highly emotional and upset, prone to exaggeration and motivated to hurt the accused. Many cases have shown investigators to require an alleged victim to add the phrase "I felt pain" to any written or verbal description of the incident. The alleged victim is unaware that "pain" is the legal buzzword authorities must have to prosecute.
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