Legal Question in Criminal Law in New York

two witnesses

There are 2 witnesses to a domestic violence situation(victim and sister) and both do not testify. Police arrive 15 minutes after the call.

Sister makes one outburst accusing defendant that ''its been 8 years since this has been happening'' when the police arrive, and then goes upstairs. Officer interviews sister upstairs a good 15 minutes after talking to defendant and victim. By that time she is angry but calm.

Victim was not crying when police came. She was lead by the officer to sit on a chair and was quiet until he asked her to tell him what happened. She started crying as she tells her story mixed with anger and accusing husband as well. Husband also is accusing wife in front of the officer.

Both victim and sister have signed police statements. When there are 2 witnesses in an incident, does reliability on excited utterances decrease as both witnesses interact with each other before the police come, meaning, police are not the first source of interaction after an incident. Also would statements be included as excited utterances just by what I have described as the demeanor of the parties. Also can the police lie to get statement incuded? Do witten statements come in anyway even when witnesses do no testify?


Asked on 3/22/06, 2:24 pm

3 Answers from Attorneys
Andrew Nitzberg Andrew Nitzberg & Associates

Re: two witnesses

This sounds like a 'law school question' and the appropriate answer is: if the witnesses testify in court as to what they saw and experienced, this is direct testimony by a witness in court.

'Excited Utterence' is an exception to the 'Hearsay Rules'. The testimony of these 2 witnesses is not testimony because they are testifying to what they said and what they saw.

Hearsay is when the witness testifies to what someone else said.

The hearsay issue comes up when the statements of the witnesses are offered in court by the police officers. The 'its been happening for 8 years' sounds like an 'excited utterance' elicited by the arrival of the police and may be used to bolster the reliability of the sister's direct testimony, if needed.

You are welcome to ask more questions.

Read more
Answered on 3/23/06, 2:31 pm
Valerie Masters Valerie Masters, P.A.

Re: two witnesses

I remember your case. Written statements nor 911 calls are escited utterance. The 8 comment is not releveant either.

Read more
Answered on 3/23/06, 5:27 pm
Carlos Gonzalez Gonzalez Legal Associates PLLC

Re: two witnesses

Generally in NY police reports and those statements are not sufficient prosecute a Defendant, unless the witness(es) sign a further complaint corroborating their original statements to the police.

If this complaint is not signed by law, NY CPL 30.30, a domestic violence case must be dismissed after three months and the file sealed. However, it is advisable that an attorney prepare the motions and be present at the case. My firm specializes in these matters, please feel free to contact my office for further information.

Read more
Answered on 3/22/06, 3:16 pm


Related Questions & Answers

More Criminal Law questions and answers in New York