Lawyers Manual - Unified Court System

210 Elizabeth Cronin
sounds like someone being injured, the police may be able to enter the home
without a warrant, but would not have the right to a full search.
Statements by the abuser can be used by prosecutors in their direct case. As
the US Supreme Court has noted, “The defendant’s own confession is probably
the most probative and damaging evidence that can be admitted against him.” 26
A detailed written statement by law enforcement signed by the abuser is optimal
and should include as much information as possible concerning the immediate
incident as well as any prior incidents. Police should also document any injuries
the defendant exhibits that would be consistent with the abuse of his partner. These
injuries may also be photographed and other evidence, such as swabs, fingernail
scrapings and clothing may be seized either with his consent or with a warrant.
A victim or other person can obtain a statement from a suspect as well. If this
procedure is undertaken, any conversation between the suspect and the third party
should be tape recorded. There is no prohibition in New York from making and
using such statements as long as one of the parties to the conversation knows it is
being recorded. However, if the victim becomes uncooperative after getting the
statement from the suspect, it may be difficult to introduce the tape into evidence.
Sometimes an abuser may leave messages on voice mail or an answering
machine on which he either threatens the victim or admits some portion of the
crime. These statements can be admissible if the police seize the evidence legally.
Hearsay Exceptions: Excited Utterances
Ordinarily, hearsay is not admissible into evidence unless it fits within an
exception to the hearsay rule. Hearsay evidence can be critical in a domestic
violence case, particularly where the victim is unwilling or unable to cooperate.
Often hearsay is offered through a tape of a 911 call by the victim or a third
party. Generally, because a 911 call is made contemporaneously with developing
events, it may be admissible as an exception to the hearsay rule because it is
less likely that the caller had time to fabricate the story. A “spontaneous
declaration” is made while the speaker is “under the stress or influence of the
excitement caused by the event, so that his reflective capacity was stilled.” 27
The trial court will consider the sudden and violent nature of the crime, the
extent of any injuries inflicted including pain and any emotional trauma which
might suggest a lack of “studied reflection.” 28 In the 1991 assault case, People v
Norton, where the victim refused to testify, the Court of Appeals held that a
hearsay statement should be admitted after considering all of the facts. 29