As a 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 Proto, Sachs & Brown, 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.