I have a question that I am hoping someone here can help me with. This is my first experience with a Family Violence case. The victim was beat up by her husband but did not call the police herself or at the time (no excited utterance or present sense impressions). Instead she went to work later that week and her supervisor called the police because of the injuries to her face.

The police arrived and interviewed the victim. She told them her husband had punched her repeatedly and stomped on her head. He had also threatened to kill her and himself.

Now trial time is coming around and of course the story now is that this was just a big misunderstanding. Victim was attacking her husband and fell into her husbands boot, etc.

I know this must be pretty typical in FV cases. But how can we get her prior statements in?

Everything I read says prior inconsistents of our own witness can be used only to impeach, but in that case the witness can not be called to impeach as a mere subterfuge to get otherwise inadmissible hearsay evidence before the jury.

There has to be some way around this.

I am thinking (probably wrongly) that we can make a Statement Against Interest argument because her original statement may constitute a false report. I know that is a very weak argument but I am trying to think of some way around the hearsay problem.

If any of you have any experience with this and have some advice I would very much appreciate it.

Even if you could get over your hearsay hurdles, you've still got massive confrontation clause issues. See this thread: https://tdcaa.infopop.net/eve/forums?a=tpc&s=347098965&f=157098965&m=19310291

Jim,

Thanks. We read Crawford when it came out last week. Looks to be very bad news for us.

The more research I do on this topic the more I find against our case. It just seemed to me that the law of common sense should allow for some way to convict a person for domestic abuse even if the wife is unwilling to testify (which I am sure happens in almost a majority of the cases).

Crawford will never be a problem if the witness testifies. Crawford, Fn. 9 "Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements"

So, then why can't we just offer into evidence a videotaped child interview and rest?

If your cw went to the doctor, you can get in medical records if she told her dr her husband did this--even for truth of the matter. If not, the best the prior statement gets you is impeachment--not for truth of the matter. Maybe supervisor documented it in her personnel file--possibly could then get it under business records.

Other option is to try to track family and friends--she probably outcried immediately to someone to get herself safe that night--the trouble is discovering who. Maybe find out if there were any 911 calls around the location by neighbors concerned?

I haven't ever thought of the idea of using her prior statement as a statement against interest under the false police report idea--it might be worth a try if it's all you've got.

Seems like you've got a big hurdle. Best of luck to you.

Dig around at her place of work and see if there's anyone she confided in the first day she showed up w/ bruises. If so, find out if she was crying or really emotional when she told the confidant. If so, maybe you can get it in as an excited utterance. I know there are cases out there in which courts have allowed excited utterances in when they were made days after the event.

Also, maybe call her adversely, if your judge will allow it. Let her rattle off her "falling into his boots" story and then GENTLY cross examine her about how unlikely her version is.

I think the "statement against interest" approach is creative, but defense lawyer will probably argue that you are tacitly conceding her story to the police was false. Doubt you would be able to end-around it through that way.

Not that elapsed time is not an element to consider in getting an excited utterance in, but it is only one factor, and not the most critical one. The most important single factor is whether your victim was still NOTICEABLY suffering from the emotional and / or physical trauma of the exciting event at the time she made the incriminating statements, and also whether the excited mental state continued uninterrupted by periods of "cool reflection." Good Luck.