A criminal defendant has a right to 6th Amendment right confront and cross examine the State’s witnesses. In fact, this is the most important right of a defendant in domestic violence cases in Albuquerque and throughout New Mexico. The refusal of the alleged victim to cooperate with the prosecutor and the failure to testify at trial is the primary grounds for dismissal of domestic violence cases in Albuquerque and other New Mexico courts. The recent case of State v. Soliz in the New Mexico Court of Appeals may severely limit this important right of the defendant.
The United States Supreme Court in Crawford v. Washington set forth the right of a defendant to confront any testimonial witness whether or not the witness is available at trial. The Court went further stating that if the witness is unavailable, any “testimonial” statements made by that witness are inadmissible at trial. The issue then becomes the definition of “testimonial”? Crawford set some broad guidelines with the basic determinant being whether or not the statements were given with prosecution of the defendant in mind.
The United States Supreme Court in Davis v. Washington further refined the definition of “testimonial” stating that witness statements are non-testimonial where given with the primary goal of assisting law enforcement with an ongoing emergency. To the contrary, statements are testimonial when there is no emergency, and the primary objective of the statement is to provide information possibly relevant to a later criminal prosecution.
The New Mexico Court of Appeals in State v. Soliz addressed the 6th Amendment Right to Confrontation of witnesses and the definition of “testimonial” witness in the context of a domestic violence 911 call. The facts involved a call to 911 by Soliz’ frantic and crying girlfriend who reported to 911 that she had been attacked by Soliz with a weapon, he still had the weapon, he had pursued her after the initial attack, he had since fled the scene and he was under the influence of drugs or alcohol.
The Court in Soliz had no trouble applying Davis to these facts and finding that the statements by Soliz’ girlfriend were non-testimonial. The court found that they were made in the midst of an ongoing emergency in an attempt to gain the assistance of law enforcement. Because the statements were non-testimonial, they were fully admissible at trial despite the girlfriend’s refusal to testify at trial.
Many domestic violence cases involve reluctant or uncooperative alleged domestic violence victims. In fact, this is more often than not the case. Soliz will present some significant future challenges to the defense of a domestic violence case. In short, Soliz will enable the State to go to trial armed only with a 911 call without the necessity of bringing the alleged victim to trial. The absence of the alleged victim at trial has in the past been the primary grounds for dismissing these cases. The ruling in Soliz made this outcome much more difficult in domestic violence cases involving 911 calls.
