criminal defense lawyer in Westchester County with offices in White Plains, New York it is clear
911 tapes are an important part of any
criminal defense. Sometimes the tapes are helpful to our client's defense and sometimes
they are not helpful but it is important to make that determination early
on in the case.
The 911 Tape
In most areas 911 tapes are kept for a period of time and then destroyed
if there is no request that they be preserved. The top criminal defense
attorneys will ask for 911 tapes to be persevered if there is a possibility
that those tapes will assist the defense. This is usually done early in
the case at arraignment or soon thereafter.
If the defense makes a timely request for a 911 tape and the prosecution
does not preserve the 911 tape the defense usually is entitled to a jury
instruction that the 911 tape could have had information helpful to the
defense. This also depends upon the prejudicial effect to the defense
and if the information on the tape was discoverable.
911 tapes are confidential and not available by a FOIL request therefore
911 tapes are properly obtained by a court ordered subpoena or judicial order.
In some instances the District Attorney will want to use a 911 tape to
prove the guilt of a criminal defendant. However, 911 tapes are "hearsay"
as the recording can not be used to prove a material issue of the case.
It is impossible for a criminal defense lawyer to cross examine a 911
tape and without a hearsay exception, the 911 tape will not be admitted
into evidence as that would violate the accused's rights under the
confrontation clause of the United States Constitution.
To have a 911 tape admitted it must be shown that the recording a spontaneous
declaration/excited utterance or a presence sense impression of the speaker.
The excited utterance applies when the speaker is under the stress of excitement
and the speaker did not have time to consider the speaker's own self
interest prior to making the statement. A presence sense impression requires
observations made at the time of the statement that are free from any
defect of memory with little or no time for a calculated misstatement.
It is important to understand these two exceptions as they are useful to
admit or block 911 tapes into evidence as the defense attorney deems necessary.
Criminal Defense Team
At the law firm of
Riebling, Proto & Sachs, LLP we have a team of
experienced criminal defense lawyers that handle all types of criminal cases. We go beyond the simple review
of our client's cases and spend time to do an in-depth analysis of
all the facts and evidence to develop an aggressive legal strategy.
If you or a loved one is charged with a crime call our law office for a
free legal consultation.