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August 2013 Archives

When can a defense attorney cross-examine a police officer about the police officer's misconduct?

  The defendant in a criminal case has both a United States and Pennsylvania Constitutional right to confront and cross‑examine Commonwealth witnesses.  That constitutional right includes the right to cross‑examine Commonwealth witnesses regarding their biases and motives.  The Pennsylvania Supreme Court held "whenever a prosecution witnesses may be biased in favor of the prosecution because of outstanding criminal charges or because of any non‑final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury." Commonwealth v. Evans, 512 A.2d 626 (Pa. 1986).A witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross examination. It is undisputed trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross examination.  The pertinent case law, however, permits a police witness to be cross‑examined about misconduct as long as the wrongdoing is in some way related to the defendant's underlying criminal charges and establishes a motive to fabricate.

Overview of DUI law

One  of  the  main  crimes  under  the  Vehicle  Code  is Driving Under the
 of  Alcohol  or Controlled Substance (DUI). 75 Pa.C.S.A. § 3802.
In  2003,  Pennsylvania  lowered  its threshold blood alcohol concentration
(BAC)  from  0.10%  to  0.08%.   See  former  75  Pa.C.S.A. § 3731(a)(4)(i)
(relating   to  driving  under  the  influence  of  alcohol  or  controlled
substance).   The  current  DUI  law provides that a person "may not drive,
operate or be in actual physical control of the movement of a vehicle after
imbibing  a  sufficient  amount  of  alcohol  such  that  the individual is
rendered incapable of safely driving, operating or being in actual physical
control  of  the  movement  of  the  vehicle."   75  Pa.C.S.A.  §  3802(a).
Pennsylvania   adopted  a  three-tiered  approach  to  alcohol-related  DUI
offenses  based  upon  the alcohol concentration in an offender's breath or
blood.   The  BAC  levels do not relate to the time of driving, but instead
relate  to  the  BAC level at the time of testing, which must be within two
hours of driving.
Pennsylvania's three-tiered approach is as follows: (1) General impairment:
0.08%  to 0.099%; (2) High BAC: 0.10% to 0.159%; and (3) Highest BAC: 0.16%
and  up.   75 Pa.C.S.A. § 3802(a)(b)(c). Further, this DUI law provides the
following BAC levels for: (1) commercial drivers, a BAC of .04%; (2) school
bus drivers, a BAC of .02%; and (3) minors, a BAC of .02%.  The lowest tier
"general impaired" also includes circumstances where the offender's alcohol
concentration  is  not  known  but  the  offender  has imbibed a sufficient
quantity  of  alcohol  so  as  to be rendered incapable of safe driving. An
individual  who  has  either  a  controlled  substance  in his blood or who
refuses  to  provide  a  blood or breath sample faces the same penalty as a
third tier "highest BAC."  75 Pa.C.S.A. § 3804(c).
Penalties  range  from  probation,  house  arrest  and incarceration.  In
addition,  a  person convicted of DUI might be required to attend a highway
safety  school program, and pay fines and court costs.  The severity of the
penalties  increases  with  the  higher the BAC level, and with the overall
number of total DUIs convictions for that individual.  For example, a first
offense  general  impairment  DUI  carries the possibility of six months of
probation  with  a $300 fine; whereas a fourth or subsequent DUI conviction
can  result  in  a term of imprisonment of one year and possibly up to five
years of incarceration and a fine ranging from $1,500 up to $10,000.  Being
convicted of DUI can also affect an individual's life in a variety of ways,
such  as: loss of employment, the inability to be employed for certain jobs
in the future, higher insurance rates,  license suspension, and having that
conviction on your driving records for years, or possibly-forever.

Marital privilege dealing with testifying against one's spouse under Pennsylvania Rules of Evidence

This "privilege prevents a husband or wife from testifying against their spouse as to any communications which were made during the marital relationship."  The privilege remains in effect through death or divorce.  The confidential communication cannot be divulged without the consent of the other spouse.  The public policy sought to be enhanced by this privilege is the preservation of marital harmony and the resultant benefits to society from that harmony.  Communications between spouses are presumed to be confidential, and the party opposing application of the rule disqualifying such testimony bears the burden of overcoming this presumption.  In order for a confidential communication between spouses to be protected, knowledge must be gained through the marital relationship and in the confidence which that relationship inspires.  In order to be protected under § 5914, it is essential that the communication be made in confidence and with the intention it not be divulged.  "Therefore, whether a particular communication is privileged depends upon its nature and character of the circumstances under which it was said." Accordingly, if the nature of the communication is not imbued with an aura of a sharing disclosure precipitated largely due to the closeness spouses share, then arguably it is not privileged. 

Burden of Proof at a Preliminary Hearing in Pennsylvania

Commonwealth has the burden at the preliminary hearing to establish a prima facie case that crime has been committed and that accused probably committed it.  The Commonwealth does not have to prove the accused's guilt beyond a reasonable doubt; to meet its burden at preliminary hearing, Commonwealth must present evidence with regard to each material element of charge and establish sufficient probable cause to warrant belief that accused committed offense.   While the Commonwealth need not prove the elements of the crime beyond a reasonable doubt at a preliminary hearing, the prima facie standard requires evidence of the existence of each and every element of the crime charged lest the jury be left to speculate regarding an element. 

Statements against penal interests exception to hearsay rule under Pennsylvania Rules of Evidence

Under Pennsylvania law for a statement to meet this hearsay exception the following five (5) criteria must be met: (1) the person must make a statement; (2) the speaker must have firsthand knowledge of the statement, (3) the speaker was, at the time of trial, unavailable as a witness; (4) the statement at the time of its making ... subjected himself to  criminal liability and a reasonable person in his position would not have made the statement unless believing it to be true;  and  (5) there is corroborating circumstances clearly indicate the trustworthiness of the statement.

Hearsay Exception for statements made by a co-conspirator under Pennsylvania Rules of Evidence

Hearsay is a statement made out of court and offered to prove the truth of the matter asserted.  Generally speaking, hearsay evidence is inadmissible during trial.  However, if the hearsay statement meets an exception, that statement can be admitted for its truth.  One of those exceptions is known as the exception for statements made by a co-conspirator.  Conspiracy is an agreement between two or more people to agree to commit acts that constitute a crime.

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