Motion to Suppress
The 6th Amendment guarantees the right to have an attorney present during critical post-charge stages of criminal proceedings. Live line-ups are considered such critical stages, while unfortunately, photographic identifications are not.
Regarding the 5th Amendment, it protects the right to have an attorney present during custodial interrogations. The showing of photographs to Tessa was not a custodial interrogation, so the 5th Amendment does not apply.
Therefore, the court correctly denied Dan's motion to suppress the photograph on this basis.
CA Prop 8
Under California's Proposition 8, all relevant evidence is admissible in criminal cases, but evidence that violates constitutional rights, impermissible character evidence, and hearsay are still excluded.
Statement to the defense investigator
Relevance
Evidence is considered relevant if it has the tendency to make a fact more or less likely than it would be without the evidence. Legal relevance additionally considers whether the probative value of the evidence is substantially outweighed by the risk of prejudice, undue delay, or redundancy. Tessa's previous contradictory description to the defense investigator directly challenges her reliability and accuracy, making this statement relevant.
Hearsay
The statement given to the defense investigator is considered hearsay because it is an out-of-court statement being offered to prove the truth of the matter asserted. Under California's Proposition 8, while all relevant evidence is generally admissible, hearsay remains inadmissible unless it falls under an established exception.
Prior Inconsistent Statement
For a prior inconsistent statement to be admissible, it must have been made under oath. In this case, if Tessa’s statement to the defense investigator was made under oath, it could potentially be admissible as substantive evidence.
Former Testimony
The former testimony exception requires that the testimony was given under oath and that the witness is unavailable to testify at the current proceedings. Since the witness is available, her statement does not qualify under the former testimony exception.
Impeachment Evidence
Although the statement may not be admissible as substantive evidence, it directly contradicts Tessa's court testimony about the suspect's appearance, which is a crucial issue rather than a collateral matter. Thus, it can be used to impeach her credibility.
In summary, the testimony given to the defense investigator can be admitted for the purpose of impeaching the witness. The judge may instruct the jury that it should only be considered for impeachment purposes.
The photograph with Tessa’s signature
Hearsay
The photograph signed by Tessa, identifying Dan as the suspect, constitutes hearsay because it is an out-of-court identification used to assert that the person depicted is the robber.
Prior Identification
A witness's prior identification of a suspect is generally excluded from the hearsay rule and is admissible as substantive evidence.
Legal Relevance
Resolving the hearsay issue does not conclude the inquiry into the admissibility of the photograph. The defense might argue that since one identical photograph has already been admitted, introducing another photograph with Tessa's signature could be unnecessarily cumulative or prejudicial.
This argument is unlikely to prevail because the signature on the photograph can enhance the credibility of the prior identification in the eyes of the jury. It emphasizes Tessa's certainty and commitment at the time of identification, which is a critical aspect of her testimony. While any evidence can naturally cause some prejudice to one party, under Proposition 8, it should be admitted as long as it does not cause undue or unfair prejudice.
The ATM Records
Relevance
The ATM records are highly relevant to the case as they potentially contradict Dan's alibi.
Hearsay
ATM records are not assertions made by a person, and are not considered hearsay.
Authentication
The records have been properly authenticated by Chet, the custodian of records from Credco, who testified that they were produced as part of the regular course of business, and establishes a reliable basis for the creation and maintenance of these records.
Given these factors, the ATM records are likely admissible as they are relevant, not considered hearsay, and have been properly authenticated.
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