We are proceeding to trial without the victim and would like to introduce the victim's statements as recorded on the officer's body camera. Victim is available, but would prefer not to testify.
Anyone have experience in overcoming the hearsay objection? Supporting caselaw?
Thank you in advance.
I'd need a lot more information than just body camera statements. So much is going to depend on the exact statements and circumstances. Excited utterance is usually the first thought for those types of statements, if you can get your officer to lay the predicate for it. Was this an encounter immediately after the officer arrived or an interview more after the fact when things have settled down? Was it a violent offense that would keep someone riled up for longer?
If they were excited utterances, there's plenty of case law on that. Your real problem is the confrontation clause. If the statements are testimonial then she'll need to testify. Probably not worth risking if she's at all willing.
The other trick is that if you have any evidence the defendant had attempted to scare her into not testifying, gave her instructions to lie, change her story, etc. then you've got a "forfeiture by wrongdoing" situation and you can overcome the Crawford issue.
The case is an aggravated assault with a deadly weapon. The victim is noticeably scared and shaking while speaking to the officer. Excited utterance applies.
However, the Crawford issue is raised when the officer begins asking her more questions and she begins detailing the assault.
I found some cases regarding in-dash videos and applied the same logic. The only way we can only overcome the issue is if she is "unavailable" or through "forfeiture by wrongdoing." Since neither applies, she will be testifying.
Thanks for your help.
The Confrontation Clause requires her to be available for cross-examination. It doesn't require her to testify. As long as she's in the courthouse and can be called, then you should be able to get around that. However, since that just means the defense will then call her and she'll have to testify anyway, I don't really see any benefit in it and would just put her on to testify from the beginning.
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