Evidence Issues in Criminal Justice

This paper will examine various evidentiary issue's that the court system has dealt with the following cases and there issue's. Davis v. Washington, U. S. Supreme Court (2006) dealt with the issue of hearsay and confrontation as it applied to this case. United States v. Odom, U. S. Court of Appeals, 4th Cir. (1984) discusses the issue of mental competency as it relates to a witness statement under FRE 601. United States v. Paul, 11th Cir. Court of Appeals (1999) discusses the issues regarding opinion and expert testimony. Constancio v. State, Supreme Court of Nevada (1982) will deal with the issue of spousal privilege. This paper will close with discussing the best evidence rule as it applies to the introduction and definition of "writing" FRE 1001(1) in United States v. Duffy, 5th Cir. Ct. of Appeals, 1972.

In Davis v. Washington, 547 U.S. 813 (2006) the Supreme Court of the United States affirmed the conviction of Davis. Davis v. Washington. The case was about Davis the ex-boyfriend physically abused McCottry the female in the relationship. The 911 operator was obtaining Information for police response and the operator collected suspect Davis's information. At one time during the 911 conversation, she told McCottry to stop talking and answer her questions. The Suspect Davis said his purpose was to get his stuff since McCottry was moving. The responding officers only witnesses and could not testify to cause of the injuries. During trial testimony needed concerning the injuries was not given because McCottry did not testify. McCotty could have but as in most domestic cases the victim did not.

Trial Court Admitted 911 Recording and Jury convicted Davis, and Davis Objected based on the Confrontation Clause of the Sixth Amendment. The Confrontation Clause of the Sixth Amendment requires that "in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him."

The questions this objection raised was whether and when statements made to someone other than law enforcement personnel are "testimonial?" If so, whether the recording of a 911 call qualifies as a testimonial statement? The Court stated that the Police in taking an unsworn testimony cannot evade the Confrontation Clause. The Court added "In any event, we do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition."

The court agreed that a question they must answer was whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements? Testimony is typically a solemn declaration or affirmation made for the purpose of establishing or proves of some fact. The 911 call is ordinarily not designed primarily to establish or prove some past fact, but to describe current circumstances requiring police assistance.

In Davis the caller/victim McCottry was speaking about events as they were actually happening. She clearly was not describing past events. As a victim McCottry was facing on ongoing emergency and her call was a cry for help. The questions asked of McCottry were necessary to resolve the present emergency. The Questions were over the phone in a frantic matter.

In Davis the Court agreed McCottry emergency statements were not taken in a courtroom tribunal, she was unavailable and she was not cross-examined. The Rule of Forfeiture by Wrongdoing 804(b)(6) applied. The rule of forfeiture by wrongdoing extinguishes confrontation claims on essentially equitable grounds. That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. In this case the government had to prove by a preponderance of the evidence standard. The Court affirmed the Supreme Court of Washington.

In the Odom case the alleged scheme involved casting absentee votes in the name of residents of The Belle's View Rest Home in Alexander County. The residents were generally persons of advanced years, feeble both physically and mentally. The defendant Odom testified to his visits to the Home and his discussions with the Home's manager relative to voting absentee the residents of the Home for the "straight Democratic" ticket, which would include both the incumbent sheriff and clerk of court. As a result of these discussions, Odom, accompanied by the defendant Dyson, brought to the Home letters which had been prepared requesting authorization to vote absentee in the approaching election to be mailed under the plan to vote in the name of the residents of the Home.

These letters were signed with the names of the Home's residents, as furnished by the manager of the Home. Presumably, such letters were not signed personally by most of these residents, since the record establishes that only a few of the residents could write their names. A Rest Home employee, Steve Connor, testified that he helped fill out the applications and that those residents capable of signing their own names did so, while he signed for those unable to sign.

According to the testimony offered by the Government, these letters requesting authorization to vote absentee were mailed by Odom to the County Board of Elections for processing. On October 28 when they ascertained that the applications had been approved by the Election Board and the ballots mailed back to the residents, together with an envelope in which the ballot of each voter was to be placed, Odom and Dyson returned to the Rest Home for the purpose of voting the ballots sent to the residents of the Home.

The defendants Beach and Lackey and Ms. Donna Wike, a North Carolina notary public and legal secretary, who was indicted but entered into a plea bargain with the Government, arrived shortly afterwards by previous arrangement. Ms. Wike's function at the Home was to notarize the affidavit forms for each voter on the envelope in which the voter's ballot was to be inserted for mailing to the County Board of Elections.

This affidavit form consisted of a statement in which the voter swore that he or she was a voter in the precinct where he or she was voting and was unable to travel to vote in person. It concluded with a declaration under oath by the voter that he or she had "made application for absentee ballots. This form was required to be signed by the voter, or by his or her authority, and to be duly notarized. Without such affidavit, duly signed and notarized, the ballot could not be received or counted.

Both before and after the election, the Federal Bureau of Investigation received complaints of fraudulent absentee voting in Alexander County. These complaints were followed by a federal grand jury