Evidence Flashcards
Summary
The court should allow admission of the caller’s out-of-court statements to the police dispatcher on the authenticated 911 recording because they fit the hearsay exceptions for “present sense impressions” and “excited utterances.” The caller’s statements may also fit the exception for “statements made for medical diagnosis or treatment.”
Admission of these statements would not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution. Although the caller is unavailable to testify and the boyfriend will have had no pretrial opportunity to cross-examine her, the caller’s statements are not testimonial because the evidence demonstrates that the reasonable and objective primary purpose of both the caller and the police dispatcher was to address an ongoing emergency.
The sister’s statements to the officer fit the hearsay exception for “excited utterances.” However, admission of the sister’s statements through the testimony of the officer would violate the Confrontation Clause because the sister is unavailable to testify, the boyfriend will have had no opportunity to cross-examine her, and her statements are testimonial. The sister’s statements are testimonial because the reasonable and objective primary purpose of the sister and the officer was not to address an ongoing emergency, but to establish past events potentially relevant to a later criminal prosecution of the boyfriend.
Do the caller’s statements to the police dispatcher fit a hearsay exception?
If offered to prove the truth of the matter asserted, that the boyfriend attacked the sister, the caller’s statements to the police dispatcher are hearsay. However, her statements fit the hearsay exceptions for “present sense impressions” and “excited utterances,” and probably fit the exception for statements made for purposes of medical diagnosis.
Rule
As an out-of-court statement offered to prove the truth of what the caller told the police dispatcher (i.e., that her sister’s boyfriend was “out of control,” had thrown a broken beer bottle at her sister, and that her sister was bleeding), the caller’s statements on the authenticated 911 recording are hearsay. However, the court should overrule defense counsel’s hearsay objection because the caller’s out-of-court statements fit two hearsay exceptions.
First, the caller’s statements fit the hearsay exceptions for “present sense impressions.” Pursuant to Rule 803(1), a present sense impression is “[a] statement describing or explaining an event or condition made while or immediately after the declarant perceived it.”FED.R.EVID. 803(1) (emphasis added). In this case, the caller described the events to the police dispatcher as they were happening.
Second, the caller’s statements also fit the hearsay exception for “excited utterances,” pursuant to Rule 803(2). An excited utterance is “[a] statement relating to a startling event or condition, made while the declarant was under the stress or excitement that it caused.”FED.R.EVID. 803(2).
Application
Here, the caller telephoned 911 while she was watching her sister’s boyfriend violently assault her sister. The caller’s statements related to the startling event of the assault on her sister. Moreover, because the caller made the statements as she watched the assault, she would have been under the stress caused by the assault on her sister at the time her statements were made.
Third, some of the caller’s statements probably also fit the hearsay exception for “statements made for medical diagnosis or treatment.” Statements that fit this exception must have been “made for—and [] reasonably pertinent to—medical diagnosis or treatment; and describe[] medical history; past or present symptoms or sensations; their inception; or their general cause.” FED.R.EVID. 803(4). Here, the police dispatcher asked specific questions about the sister’s injuries and the caller stated that her sister had blood on her arm. Thus, this portion of the caller’s statement was relevant to the sister’s medical condition and the fact that she might need medical treatment.
[NOTE: The questions from the police dispatcher are not hearsay because they are not assertions.]
Would admission of the caller’s statements to the police dispatcher violate the Confrontation Clause?
The Confrontation Clause does not bar the admission of an out-of-court statement when the objective primary purpose of the interrogation was to address an ongoing emergency.
Rule and Application
Even when, as here, an out-of-court statement falls within a hearsay exception, the Confrontation Clause of the Sixth Amendment of the United States Constitution will sometimes preclude the admission of the statement at trial. The Confrontation Clause gives a defendant in a criminal case the right to be confronted by the witnesses against him. U.S. CONST. AMEND. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”). In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the admission of out-of-court “testimonial” statements violates a defendant’s right to confrontation if the witness is unavailable to testify at trial and the defense has not had a prior opportunity to cross-examine the witness. Id. at 59. In this case, the caller is unavailable because the prosecutor’s efforts to secure her appearance at trial have been unsuccessful, and the defense has not had a prior opportunity to cross-examine the caller.
Thus, the critical constitutional question is whether the caller’s statements to the police dispatcher were “testimonial.” After Crawford, many statements made to police officers in the course of an interrogation are testimonial. Id. at 52–53 (“interrogations by law enforcement officers fall squarely within that class [of testimonial statements]”). However, in Davis v. Washington, the Court clarified that when witnesses make statements to the police “under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoingemergency,” these statements are not testimonial. See Davis v.Washington, 547 U.S. 813, 822 (2006). More recently, in Michigan v. Bryant, 131 S. Ct. 1143(2011), the Court elaborated on the “primary purpose of the interrogation” standard, noting thatprimary purpose should be determined using “a combined inquiry that accounts for both thedeclarant and the interrogator.” Bryant, 131 S. Ct. at 1160. The BryantCourt also specified that“[a]n assessment of whether an emergency that threatens the police and public is ongoing cannotnarrowly focus on whether the threat solely to the first victim has been neutralized because thethreat to first responders and to the public may continue,”id. at 1158, and that “the duration andscope of an emergency may depend in part on the type of weapon employed,” id., and/or “[t]hemedical condition of the victim,” id. at 1159.
Here, the caller telephoned the police for assistance while the boyfriend was assaulting the sister. The sister was injured and bleeding, and the boyfriend could have posed a threat to the caller and/or first responders. Thus, it is clear that the caller made statements to the police dispatcher while the emergency was ongoing. This conclusion is reinforced by the fact that the police dispatcher’s questions were aimed at addressing the ongoing emergency (i.e.,the dispatcher attempted to ascertain the extent of the concurrent violence, the level of danger, the parties involved, and whether anybody was injured). Based on these facts, the caller and the police dispatcher both had a primary purpose of resolving the ongoing emergency created by the boyfriend’s violent physical assault of the sister. Thus, the caller’s statements were not testimonial and admission of these statements does not violate the Confrontation Clause. See Bryant, 131 S. Ct. at 1162; Davis, 547 U.S. at 827.
Do the sister’s statements to the officer fit a hearsay exception?
The sister’s statements to the officer fall under the “excited utterance” exception to the hearsay rule.
Rule and Application
The court should overrule defense counsel’s hearsay objection to admission of the sister’s statements to the officer. Testimony repeating the sister’s out-of-court statements would be hearsay because the prosecution is seeking to use the statements to prove the truth of the matter asserted by the sister (that the boyfriend had just attacked her). However, the sister’s statements would be admissible pursuant to the “excited utterance” exception to the hearsay rule. FED.R. EVID. 803(2). As discussed above in Point One, an excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused.” Id. Certainly the boyfriend’s violent attack was a startling event and the sister was clearly still “under the stress or excitement that it caused” when the officer arrived at her house five minutes later. The statements were made within minutes of the boyfriend’s violent conduct, the sister was in a highly emotional and agitated state (she was in tears when she spoke to the officer), and her statements related directly to the boyfriend’s attack, which was the event that caused her to be excited and upset.
[NOTE: The sister’s statements here do not fit the hearsay exception for statements made for the purpose of medical treatment, FED. R. EVID. 803(4), because she specifically declined the medical assistance offered by the officer.
Would admission of the sister’s statements to the officer violate the Confrontation Clause?
The Confrontation Clause prohibits the use of the sister’s statements to the officer because they are testimonial. The objective primary purpose of this interrogation was not to address an ongoing emergency, but to establish past events potentially relevant to a later criminal prosecution.
Rule and Application
The dispositive question is whether admission of this out-of-court statement would be precluded under the Confrontation Clause. As discussed above in Point Two, the Supreme Court defined testimonial out-of-court statements that require confrontation in Crawford, Davis, and Bryant. Unlike the caller’s statements to the police dispatcher during the boyfriend’s attack, the sister’s statements to the officer were made when the emergency was over and described what the boyfriend had done in the past. Although just a short period of time had passed and the sister was clearly still upset about the boyfriend’s attack, the boyfriend was now locked in the back of the police car and no longer posed any danger to the sister, the officer, or anyone else.
In 2006, in Davis v. Washington, the Supreme Court focused on the question of whether the primary purpose of each interrogation was to enable police assistance to meet an ongoing emergency. In 2011, the Bryant Court significantly elaborated on the operation of the standard in a range of contexts. The Bryant Court cautioned that “[a]n assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because the threat to first responders and to the public may continue.” Bryant, 131 S. Ct. at 1158.
Here, the facts indicate that the emergency was resolved by the time the sister made her statement. See State v. Wright, 726 N.W.2d 464, 476 (Minn. 2007) (finding no ongoing emergency after alleged assailant was placed in a police car). Under these circumstances, the primary purpose of the interrogation was not to resolve an ongoing emergency but to establish past events potentially relevant to a later criminal prosecution of the boyfriend. See Davis, 547 U.S. at 822. Because the sister’s statements were testimonial, she is unavailable to testify at trial, and the boyfriend has had no opportunity to cross-examine her, the admission of the sister’s statements through the trial testimony of the officer would violate the Confrontation Clause.
The facts specify that the prosecutor seeks to admit the caller’s and the sister’s statements to prove the attack (i.e., as substantive evidence). However, if either statement were admitted for a non-truth purpose (e.g., to prove the caller’s or the sister’s state of mind), it would not be barred by the Confrontation Clause.
