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Court Determines if Evidence Submitted by Defendant is Inadmissable


A husband moved an action against his wife’s lawsuit to take a statement to be offered in court on his behalf by issuance of a request letter. The wife opposes the application of motion.
It started when a wife alleges that she was a victim of domestic violence committed by his husband. However, the husband moves for a letter requesting for information to take the statement of the wife’s sister. The husband argues for his sister-in-law’s granted permission for the recorded telephone conversation between his wife and his sister-in-law at which time his wife made certain admissions. The husband asserts that the recorded conversation contains statement which is necessary for the trial on the issues of custody and domestic violence.

A New York Criminal Lawyer said the husband asserts that a letter is requested because the prospective witness, his wife’s sister, resides in another country and therefore is not within the jurisdiction of the court. The counsel further stated that the wife’s sister is physically unable to travel to testify at the time of trial because she is suffering from a blood clot in her lungs. Further, the counsel neither annexed an affidavit by a person with actual knowledge nor certified medical documentation supporting the counsel’s assertion.

The wife contends that the issuance of letter of request is an improper disclosure device at that moment since her husband has not shown that an alternate disclosure device is unavailable. The wife further states that the statement and request for letter is not necessary in their action because the testimony sought is not sufficiently related to the issues of an order of protection or child custody. The wife requests that if the court issue letter or an open commission, the expenses acquired by her and her attorney should be paid in advance by her husband.

Based on records, it is well established that a tape recording of a telephone conversation without a warrant is wiretapping. In order for a wiretapping to be permitted into evidence there must have been the consent of at least one of the parties to the tape recording. A Brooklyn Criminal Lawyer said wiretapping is defined as the unlawful initiation of a telephonic communication. Wiretapping is generally committed when a person intentionally overhears a telephonic communication without the consent of a party to the communication. Without the consent of either party to the conversation, wiretapping violates a law. Furthermore, without consent, those recordings are not allowed because the legislature intended to prohibit admission of all illegally intercepted evidence in all court trials when it enacted the law exclusionary provision.

The court is unwilling to utilize the procedures of a foreign authority in an effort to determine whether or not the telephonic recording was made with consent. Unless it is determined that nonparty witness the wife‘s sister will voluntarily appear in the court at the time of trial, the court orders a commission. Furthermore, since oral questioning is a more effective method to acquire information, the parties are directed to proceed by open commission. The wife shall have an opportunity to cross-examine her sister. Moreover, the evidence or statements shall be video recorded so that the court may observe the behavior of the witness.

The husband shall pay the travel expenses of his wife and his wife’s counsel by the least expensive available air travel to the country of his sister-in-law.

The court finds that since the wife’s sister is a nonparty witness who resides in a foreign jurisdiction, her testimony is found to be relevant and essential to the trial of the action. The husband’s motion is granted to the extent that the parties are directed to proceed by open commission for the statement of the wife’s sister. The wife is on notice and together with her counsel, shall make all travel arrangements and schedule of the testimonial within 30 days after a true transcript and a copy of the tape have been provided.

There are episodes in marriage that partners encounter trials and problems. Sometimes those trials became the main reason to hurt each other. If you want to stand for your right, ask from the team of New York Domestic Violence Lawyers so they can provide you better understanding on you legal issues. If are troubled because unlawful actions, or have been charged with sex crimes, a drug offense, or theft charge you call New York Criminal Lawyers at Stephen Bilkis & Associates.

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