Testimonial vs. Non-Testimonial Evidence: What happens to criminal charges if a witness fails to appear at trial

Our criminal defense law firm handles a variety of offenses in Pennsylvania and New Jersey. A frequent question from clients is what happens if the prosecution witnesses or defense witnesses fail to show up for trial? In most cases, these witnesses can provide crucial testimony to either the prosecution or the defense. I’ve written previous articles on hearsay. Hearsay is any out of court statement offered for the truth. It’s normally inadmissible at a criminal trial but there are exceptions to the “hearsay rule”. Courts won’t admit hearsay evidence normally because it is considered inherently unreliable.

It’s a common sense principle that only the person observing something can truthfully and accurately testify as to what happened. If something is told to someone else and that secondary source comes to court to testify, there’s a possibility that this secondary source will fail to properly restate what was told to them. You can see this concept at work if you tell a group of people a story and then ask them to retell it to you. You’ll find that every person will present a different version of what actually occurred. There are situations, however, where a person can’t come to court because they have passed away or have taken ill.

In these situations a court must determine if the previous statements made to police, law enforcement or some other individual are admissible. The United States Supreme Court dealt directly with this issue in the case of Crawford v. Washington. In this case, the Court ruled that all testimonial evidence is inadmissible if the defense wasn’t given an opportunity to cross-examine the speaker (aka the declarant). Cross-examination, therefore, is a critical part of the admissibility of potential hearsay evidence. There are other exceptions to the hearsay rule but testimonial evidence is only admissible under Crawford if the accused person was given the right to confront this individual through cross examination at a prior hearing or at a deposition. The Confrontation Clause is a part of the Sixth Amendment to the United States Constitution which is applicable to the States through the Fourteenth Amendment.

There are situations, however, where a court may find that a witness’s statements are non-testimonial and either the defense or prosecution may offer such statements for their effect on the listener or some other purpose (administrative purposes – business records, medical treatment.) The Supreme Court also dealt with this issue in the case of Davis v. Washington. Here, the Court found that statements made to a 911 police dispatcher weren’t testimonial and therefore admissible at trial even though the defense didn’t have an opportunity to cross examine the speaker prior to it. While hearsay evidence isn’t admissible at trial, it is generally admissible at preliminary hearings and pre-trial motions proceedings.

The admissibility of evidence is a critical part of any criminal case, especially those involving hand guns, firearms, drugs, and even DUI. It’s important that your criminal defense lawyer understand the evidentiary rules and the history behind the admissibility of these statements in order to properly defend your interests at trial. There are a variety of reasons why a person won’t show up for trial but I can’t stress enough the importance of never interfering with the witness’s attempt to come to court. This could be considered witness intimidation and it’s a felony offense in Pennsylvania (Title 18 Section 4952) and most other states.  People often think that this crime involves the use of force but it’s any type of incentive offered in exchange for not coming to court. Witness intimidation is aggressively prosecuted because it directly interferes with state and/or federal government’s ability to uphold justice.

For more information on criminal defense concepts and strategies, I encourage you to read my newsletter in my free download section, watch my videos, and follow my blog.

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