Prior to the State's last witness being called, Judge Fenn sent the jury into what he hoped to be about a 30-to-40 minute recess while counsel hashed out playing Kendra Smith's one-sided cell phone recording of her conversation with Dennis Poitra, Jr.
The Confrontation Clause of the 6th Amendment to the U.S. Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him."
Sen's attorney, Tim Cotton, objected to the playing of the one-sided cell phone call from Dennis Poitra, Jr. that Kendra Smith had recorded and played for DCI agents on August 26, 2009, saying that he had not, on Sen's behalf, been able to question “Jr.” face-to-face, nor does he know the content of what Smith said to him, since her cell phone could only record incoming voices.
Cotton cited a U.S. Supreme Court case, U.S. vs. Crawford. From a Wikipedia article on the case, the Supreme Court held that "testimonial statements by witnesses who do not appear at trial may not be admitted unless the witness is unavailable and there has been a prior opportunity for cross examination. Crawford limits the application of the confrontation clause to hearsay statements. Hearsay statements are out-of-court assertions offered as proof for the truth of the matters asserted.
The central issue is whether the hearsay evidence is testimonial. If the out-of-court statement is testimonial, the prosecution cannot use it as substantive evidence unless the declarant [in this case, Dennis Poitra, Jr.] is unavailable and the defendant has had a prior opportunity for cross-examination. If the statement is non-testimonial, the Confrontation Clause simply does not apply. [Unfortunately,] the Supreme Court did not define 'testimonial.'"
After an hour and a half of hearing arguments from both prosecutor Matt Redle and Cotton, Judge John Fenn determined on the one hand, because Jr. had “articulated an expectation” when he had told Kendra, “Don't tell anyone” and had gone on to indicate to her that he knew and understood what kind of consequences he could be facing and that he would “probably go down for this,” the statement was testimonial. However, the State could try to call Poitra, Jr. to the stand, where, if he claimed his 5th Amendment right to remain silent, would render him “unavailable.”
Judge Fenn also stated that he shares Cotton's concern about the incompleteness of the phone call, and instructed Redle to re-call Kendra Smith to the stand. They will play the audio, starting and stopping it for her to recollect, to the best of her ability, what her side of the conversation was.
The jury was brought back in at about 4:20, only to be released for the day. Another hearing is anticipated this afternoon to determine what, if any, expert testimony can be heard.