Georgia Criminal Law Blog

Click here to read the full opinion of the Supreme Court.

Today the U.S. Supreme Court decided Davis v. Washington (Slip Opinion 05-5224) and Hammon v. Indiana (Case No. - 05-5705, which those of us that deal with any cases involving domestic violence have been anxiously awaiting for.

You may recall what I wrote about Pitts v. State here.  Pitts dealt with 911 calls and their admissibility when a witness was unavailable to testify at trial.  The Crawford v. Washington ramifications of those calls were decided by the Georgia Court of Appeal in Pitts.  Click the link above to review that discussion.

Today the U.S. Supreme Court decided two cases that were almost exactly like Pitts.  In a joint opinion, the Court issued a ruling that seems like it would have affirmed, at least the judgment of the Georgia Court of Appeals had the Pitts case gone up that far.  Scalia, writing for the Court, held that when the statement is made for the purpose of gathering evidence of past conduct to assist with a future prosecution, and there is no ongoing emergency, the statement is testimonial and inadmissible.  If the statement is made for the purpose of stopping an emergency in progress, then it is nontestimonial and admissible.

It is unclear what will happen with the statements that have mixed testimonial and nontestimonial statements in them.  What seems clear to me is that they would go as far as the Georgia Court of Appeals did on some of the statements in the Pitts case.  The Georgia Court of Appeals said that a statement in Pitts (wife said husband was violating his parole) “came close” to being testimonial, but that it really wasn’t because she was just explaining.  I think this statement would be viewed as testimonial by the U.S. Supreme Court.  Past conduct, even very “fresh reports” of past conduct are most likely testimonial.  The Court seems to be serious about an accused’s confrontation rights, but only time will tell.

Few topics are discussed among lawyers more.  Should you put your client on the stand or not?  Sometimes it’s just not an option for any number of reasons.  Maybe your client has a criminal history that has too much to impeach with.  Maybe your client told so many inconsistent versions of a story to the police that there is no way he will come off as credible.  Some lawyers never put a client up unless there is a critical point in the defense that cannot be proven by another witness.  I used to fall into that category.  However, the more jurors I speak with, the more I am convinced that your client should testify unless it does a great deal of damage to your case.  One day on the elevator at the courthouse, a juror who had been deliberating on a murder case (not mine) told me that he was frustrated that the lawyer “put up no defense.”  I asked him what he meant and he said that the lawyer didn’t even put his client on the stand.

I think that if you are going to ask a jury to acquit your client, they expect them to at least get up and say, “I didn’t do it.”  This expectation can be tempered somewhat in jury selection by educating them on the topic, but I think you are never going to completely get by it.  Jurors want to hear from your client.

The last trial I won, I put my client on the stand and she testified.  We won that case.  I am convinced that if she had not testified, the jury would have convicted her.

The moral of the story is that lawyers ought to consider putting their clients on the stand more often and not simply rest there case.  The jurors all think that if they were wrongly accused of something, they would be telling anyone that would listen…especially their jury.