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Washington Court Rejects Appeal Due to the Failure to Preserve the Issue at Trial

On Behalf of | May 11, 2022 | Domestic Violence

Typically, witnesses for the state must testify in person, and if the state attempts to introduce a person’s out-of-court statements instead of offering them as a witness at trial, their statements may be precluded as hearsay. If the defendant engaged in certain wrongful acts that prevented the person from testifying, though, the court may find that the defendant forfeited the right to object to the submission of out-of-court statements. This issue arose in a recent Washington domestic violence case in which the court ultimately determined that the defendant waived the right to an appeal by failing to raise the issue at trial. If you are charged with a domestic violence crime, it is prudent to confer with a Tacoma domestic violence defense lawyer at Smith & White, PLLC to assess your rights.

The Facts of the Case

It is reported that the defendant was charged with multiple counts of violating a domestic violence protection order. When he was in jail after his arrest, he made numerous calls to the victim and asked her not to testify against him at trial. She agreed and, in her absence, the state introduced calls the defendant made from jail to the number used by the victim when she called 911 to report the initial violation. The jury deemed the defendant guilty, and he appealed.

The Forfeiture by Wrongdoing Exception to Hearsay

On appeal, the defendant argued that the trial court erred by admitting the phone calls into evidence because it presumed that he was the caller instead of finding that the evidence demonstrating he was the caller was cogent, clear, and convincing. The court explained that the rule against hearsay does not apply if a party engages in wrongdoing that constitutes a waiver of the hearsay rule. The appellate court noted, though, that the point was moot as the defendant did not object when the state offered the subject calls into evidence at trial and expressly stated that he did not contest the issue of identity.

The appellate court explained that, with limited exceptions, it would not review alleged errors that were raised for the first time on appeal. Here, the defendant failed to demonstrate that the purported error fell under any applicable exceptions. As such, the appellate court declined to review his allegation that the trial court erred by presuming he was the caller on the subject calls.

Speak to a Seasoned Criminal Defense Lawyer in Our Tacoma Office

People accused of domestic violence have numerous rights, including the right to confront their accusers at trial, but if they do not object to violations of their rights at trial, they may waive the right to appeal.  If you are accused of a crime of domestic violence, it is smart to contact an attorney to discuss what defenses you may be able to assert. The seasoned Tacoma criminal defense lawyers of The Law Offices of Smith & White possess the skills and resources needed to help you seek a good outcome, and if you hire us, we will work tirelessly on your behalf. You can contact us via our form online or by calling us at 253-363-8662 to set up a conference.