Earlier this week , I posted on the new changes in the docketing of domestic violence cases in Nashville Davidson County Tennessee. With new concepts in how to process domestic violence cases also comes new strategies in prosecuting the cases. It used to be if a witness did not appear in court after being subpoenaed then a criminal defense attorney would make a motion to dismiss based on the failure of the state to be able to prosecute . The government has gotten creative in trying to make a case where the witness does not show up to court.

First , the District Attorneys Office has hired two folks to go get witnesses and bring them to court if they do not appear. The second new tactic is the use of exceptions to the hearsay rule.

It is a bedrock principle of our criminal justice system is the right to confront and cross-examine witnesses that are called to testify against you. The Supreme Court of the United States affirmed that constitutional protection in Crawford v Washington . The bottom line of the court’s holding was that the Confrontation Clause prohibits the admission of testimonial statements unless the defendant has an opportunity to cross-exam the witness. The court went on to allow some exceptions to the rule.

Will Allensworth gave a great presentation on the new ways the government is trying to introduce out of court statements. Here are the ways that the government is attempting to introduce these out of court statements.

  • Forfeiture by Wrongdoing. This is a exception to the hearsay rule and the rule of confrontation in which a person has engaged in wrongdoing to procure the unavailability of the declarant as a witness. An example of this is telling the witness not to come to court. So be careful what you say or text.
  • Excited Utterance Exception to the Hearsay Rule. Rule 803 (2) allows the admission of statements relating to a startling event made while the declarant was under the stress of excitement caused by the event.
  • The statement was not testimonial. The Tennessee Supreme Court laid out a list of nonexclusive factors on whether s statement is testimonial in the Franklin case.

 The take away  point for a person accused is not to create a record of telling someone not to show up in court . For the criminal defense lawyers , better know the rules of evidence and when is a statement testimonial.