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Legalease
Legalease, Lawyer
Category: Criminal Law
Satisfied Customers: 14511
Experience:  13 years experience in criminal law, BA in criminal justice
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Ive been told on here that the DA who is charging me with a

Customer Question

Ive been told on here that the DA who is charging me with a felony e criminal contempt based on alleged phone calls that i made after a TOP was issued can do this just based on my husbands lies without simply verifying against and actual telephone record.

What upsets me is that my legal aid attorney was encouraging me to plead guilty to this charge when I was 99.9 percent sure I didn't call anymore after the TOP was issued based also on my husbands lies without verifying that an actual crime was committed with he actual phone records. Needless to say I told him he was very negligent to do this to me without at least doing his best to defend me by at least getting those records to see for sure if i committed this alleged crime. I'm probably going to hire a private attorney now.

My question is this. Cant he still write a motion to subpoena the phone records before i consider any plea offer made by the DA not to got to trial. Or do I have to be indicted and go to trial to know for sure if i even committed a crime. If the later is true that seems very unfair. My legal aid attorney applied for a CSI which adjorns us till January and Im told in January the DA will make us an offer. I don't want to accept any offer until I see those phone records that definitely show by dates that I violated the order.
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Legalease replied 11 months ago.

Hello there.

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Unfortunately, the answer is "YES" -- the DA has the discretion to bring these charges against you without any hard physical proof and based completely on your husband's word alone. If the matter goes to trial in front of a judge and there is still no evidence in the form of records or any supposed witnesses to the telephone calls then the judge (or jury if there is a jury trial) is the person who will decide whether or not to believe him or to believe you -- it is basically a judgment call at that point on the part of the court. I do not know many DA's that would bring such a case without something more than the word of the person making the complaint -- it is rare -- but the DA can do it if they want to do so.

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Yes, once you are charged with the crime your attorney has the right to prepare and issue a subpoena to the both the DA's office AND the telephone company seeking any telephone records of your husband. Even if the telephone records do not show individual calls made (some carriers do not provide an itemized list), your attorney is still entitled to issue the subpoena to get the records. On the flip side, the DA's office can also get your telephone records with a subpoena to the telephone company.

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If you are fairly certain that you did not make these calls then my suggestion to you in this matter is not to waiver at all -- you should simply state that you did not make the calls and you will not plead out to something that you did not do unless the DA and/or your attorney can show you either his telephone record or your telephone record that says that you made the calls when you were not supposed to do so. When you are discussing a plea deal again, then you should have your attorney make it known that if they have such evidence and show it to you then you will discuss a plea but unless you see something concrete you will have to take your chances in front of a judge or a jury. At that point the DA has to decide if he wants to put his entire case on the back of your husband as his star witness or if he wants to drop the charges against you.

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MARY

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Please press the 3rd, 4th or 5th smile face below so I will be given credit for my time. I will not receive any credit for assisting you today unless you press the 3rd, 4th or 5th smile face below. THANK YOU VERY MUCH !!

Customer: replied 11 months ago.


that is very good advice. yes , the DA believes he has concrete evidence against me, because he has all the phone messages left on my husbands answering machine at work with the date from the answering machine. I told my attorney that any idiot knows that you can program an answering machine to any date you want and if my ex could strap me to an electric chair and flip the switch he would so I will not plead out like u said until I see the actual telephone company records, not his date stamp on his answering machine

Expert:  Legalease replied 11 months ago.

Maryann -

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Best of Luck with this -- the answering machine is still a bit better proof than just his word for it BUT you are correct in stating that he can change the programming on the answering machine and you are right to be suspicious of it. Please let me know if you have more questions. If not, can you please press the positive rating below so I will be paid for my time (it seems that you have not yet pressed a rating for the answer given above, which leaves me without credit for this answer until you do). THANKS !!

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MARY

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Please press the 3rd, 4th or 5th smile face below so I will be given credit for and be paid for my time. I will not be given credit for assisting you unless you press a positive rating below. Doing so will not cost you any additional money -- it simply acts as the trigger to Just Answer to pay me for my time in assisting you today. THANK YOU VERY MUCH !!!

Customer: replied 11 months ago.


one other question and then I will give you an excellent rating. the DA ia insisting that I made the calls to my husbands house therefore we are in the right jurisdiction. I told my lawyer there is no way no how I called his home. I don't have the number, I was not permitted to have the number and I know 200% I only called his offce answering machine which is in another county in NY which ive been told that is where the alleged crime is considered committed, the county to the calls where the phone calls were made. Is it possible that my husband called into his office from home to hear the messages or he has his business phone calles forwarded to his home of these phones and that is why the DA is saying the calls were made to his home and we are in the right jurisdiction. Even if one of these possibilities are true, wouldn't the alleged crime still be considered to be where the county of the phone number resides even in lieu of these technical possibilities

Expert:  Legalease replied 11 months ago.

Maryann -

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Regarding the many ways there must be to manipulate an answering machines and the manner in which the calls may be forwarded and recorded -- that is really beyond my area of expertise but it might be worth talking to someone who is considered an expert in electronic devices in your area to see how it might have been manipulated by your ex husband to implicate you in the telephone calls. REgarding the overall jurisdiction of the case, the place where the calls were allegedly received by your ex husband would be the correct jurisdiction to file the case against you -- so if your ex and the DA are claiming that the calls were received at his home then that would be the correct county in which to indict you for these matters.

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I wish I could give you more insight on the answering machine questions/issues but if you can find someone locally to assist you, then you may even be able to get the expert to testify on your behalf if this matter actually goes to a trial. Either your lawyer or a local private investigator should be able to give you the names of some persons in your area who are considered electronics experts (an online search may also help in this regard as well).

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MARY

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Legalease, Lawyer
Category: Criminal Law
Satisfied Customers: 14511
Experience: 13 years experience in criminal law, BA in criminal justice
Legalease and 10 other Criminal Law Specialists are ready to help you
Customer: replied 11 months ago.

someone at my job just said that telephone records are considered hearsay. what are they talking about

Expert:  Legalease replied 11 months ago.

Hello again Maryann --

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Your friend at work is correct -- telephone records are considered hearsay. First let me tell you what hearsay is and how if affects evidence in a court case and then I will tell you about the exceptions to the hearsay rule and how the telephone records can be admitted into court as evidence (despite the fact that the records are "hearsay" and generally hearsay evidence is generally not admissible). First, the hearsay evidence rule is the basic rule that testimony or documents which quote persons not in court are not admissible. So, if a person took the witness stand and started to tell the court that "John Doe told me to be at the racetrack at 10 O'clock" - and John Doe is not in the courtroom, then the testimony is hearsay evidence and the judge can exclude the testimony of the witness. In a situation where a document is being entered into evidence, the court will generally not accept any and every document as evidence unless the person who prepared the documents takes the witness stand and authenticates the document (authenticate means to claim the document as the author of the document and swear to the court that it is true and correct and has not been altered in any way). THe reason why a person is not permitted to testify about what someone said to him/her is because that person who supposedly knew the facts is not in court to state his/her exact words, the judge and/or jury cannot judge the demeanor and credibility of the that first-hand witness, and the other party's lawyer cannot cross-examine (ask questions of) him or her.

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However, with every legal rule of evidence and otherwise, there are always many exceptions to the rule. With the hearsay rule, there are many exceptions -- for example, if someone makes a statement against their own interest (possibly confessing to a crime) and then dies, another person who heard the dead person make the statement can take the witness stand and tell the court what the deceased person said before dying. In this situation, the exceptions to the hearsay rule are (a) Dying Declaration: the law holds that a person is more likely to tell the truth when they are about to meet their maker and so the court will admit such statements and let the jury decide if the statement was the truth or not, and (b) Statement Against Interest: the law holds that if the dying person confessed to a crime that again it is less likely that the person would lie in such a situation. So the statement would be admitted in the court testimony even if the person who said it was not available to testify.

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In the case of the telephone records, these records and any and all other official corporate documents are admissible in court under the Business Records Exception to the hearsay rule. Because the monthly bills are generated by a computer and pretty much incapable of being altered by hand (so there is no real human intervention in the preparation of the documents) they will be admissible in the court proceedings as Business Records. The only thing that is needed to get them admitted into court as Business Records is a certification from the telephone company that the records are true and correct and have not been altered. The manner in which an attorney or a party representing themselves (pro se) can get these records is to send a subpoena request to the "Keeper of the Records" of the XXXXXX telephone company and in the subpoena the request is made for the telephone records for the telephone number "XXX-XXX-XXXX" assigned to John Doe of [address] for the following months and years: XXXXX, XXXXX, XXXXX. The subpoena then commands the Keeper of the Records to appear at a certain date and time with the requested records so that the Keeper of the Records can testify to the court that the records are "true and correct" (each court has their own wording for these particular statements made about the records/documents). However, when the subpoena is sent to the Keeper of the Records, there is generally a certification blank form enclosed with the subpoena -- which the Keeper of the Records can sign under pains and penalties of perjury - and that certification states that the attached records are true and correct to the best of the Keepers knowledge (again, each court prefers its own wording of such documents) -- and when the Keeper signs the certification and attaches it to the telephone bills as normal invoices generated in the course of everyday business operations and then sends the certification and records to the party indicated in the subpoena request. The attorney for the party requesting the records can then put the main witness on the witness stand to introduce the telephone records to the court.

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So, I hope that the explanation and definitions above were understandable for you and you can tell your colleague at work that the telephone records can and will be admitted into evidence in the case despite the fact that the colleague was technically correct in telling you that the records are hearsay evidence.

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I hope that helps. I would appreciate it if you would press the 3rd, 4th or 5th smile face underneath THIS answer box as a positive rating for this additional question -- because it goes beyond a follow up question and probably should have been posted as a new question but I did not want the question and answer to be left to another expert because of my familiarity with the case You will NOT be charged any additional money for pressing a positive rating below because you are on a subscription plan -- which means that you can press positive ratings on an unlimited number of questions for as long your subscription plan is in effect.

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THANK YOU

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MARY

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