Recent Developments Concerning Excited Utterances

One of the areas in which Crawford clearly has a large potential impact is that of statements that are characterized as excited utterances or spontaneous declarations – typically, 911 calls and statements to responding officers. Under the pre-Crawford regime of Ohio v. Roberts, 448 U.S. 56 (1980), if a statement was considered an excited utterance then it fit within a “firmly rooted” hearsay exception and the Confrontation Clause posed no obstacle to its admission, without regard to whether the declarant testified at trial or was available to do so. Prosecutors, especially in domestic violence cases, frequently took advantage of this doctrine and were allowed to introduce these statements – sometimes without putting the declarant on the stand at trial or accounting for failure to do so, and sometimes, when the declarant did testify at trial, in contravention of her testimony. Bridget McCormack and I wrote about this phenomenon in Dial-In Testimony, 150 U.Pa. L. Rev. 1171 (2002).

Crawford changes the landscape dramatically. If a statement is deemed to be testimonial, then the accused has an unequivocal right to prevent admission of the statement unless he has had an opportunity to cross-examine the witness and the witness is unavailable. The fact that a statement fits within a given exception to the rule against hearsay does not alter its status so far as the confrontation right is concerned. Of course, it might be that most statements that fit within certain exceptions – such as business records – are not testimonial. But the confrontation question is not whether the statement fits within an exception; it is whether the statement is testimonial. Although Crawford declined to provide a comprehensive definition of “testimonial,” it gave a strong hint in footnote 8 of how its doctrine would apply in the context of spontaneous declarations. The Court noted that White v. Illinois, 502 U.S. 346 (1992), which had approved the admission of statements as spontaneous declarations, was "[o]ne case [it cited no others] arguably in tension with the rule requiring a prior opportunity for cross-examination when the proffered statement is testimonial." The Court then explained:

It is questionable whether testimonial statements would ever have been admissible on that ground [i.e., as spontaneous declarations] in 1791; to the extent the hearsay exception for spontaneous declarations existed at all, it required that the statements be made "immediat[ely] upon the hurt received, and before [the declarant] had time to devise or contrive any thing for her own advantage." Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179 (K.B.1694).

This historical assertion is correct. In Dial-In Testimony, we show how tightly confined the exception was even well into the latter half of the nineteenth century.

Nevertheless, some post-Crawford courts have acted as if Crawford could not have changed anything very much in this area, and that characterizing a statement as an excited utterance is still tantamount to determining that it poses no confrontation problem; the way they do this, of course, is by holding that such statements are not testimonial. The most notorious case is probably People v. Moscat, decided by a judge of the Bronx Criminal Court on March 25 and appearing to adopt a virtual per se rule that 911 calls are not testimonial. It is now apparent that this decision was a bit of judicial grandstanding, an attempt to write a quick, broad, and attention-getting opinion -- even though the facts assumed by the judge were far different from reality, and the actual facts show the danger of such general categorizations. (The caller was not the victim, and the call was made several hours after the incident.) See Sabrina Tavernise, Legal Precedent Doesn't Let Facts Stand in the Way, N.Y. Times, Nov. 26, 2004, p. A1. Nevertheless, many courts around the country have cited Moscat approvingly, and some have even extended its rationale to statements made to officers responding to 911 calls. E.g., People v. Aubrey, 2004 WL 2378400 (Cal.App. 4 Dist. Oct. 25, 2004).

These are bad decisions. They are based in part on the apparent, and mistaken, perception that only statements made formally can be deemed testimonial. Decisions attempting to render all 911 calls non-testimonial paint with far too broad a brush. And decisions treating statements to responding officers as non-testimonial reach a result that on its face should be plainly unacceptable. A full argument supporting these conclusons may be found in Dial-In Testimony, and I hope to present it in a series of posts over coming weeks -- on the general meaning of "testimonial," on why formality should not be required for a statement to be deemed testimonial, and why a statement should in some circumstances be deemed testimonial even in the absence of police interrogation or other governmental involvement in its creation. For now, though, I will present some developments that suggest greater judicial understanding of the situation.

More recently there seems to be growing recognition by courts that 911 calls are often testimonial and that statements made in person to officers who respond to those calls are almost inevitably testimonial. The decision in State v. Powers, 99 P.3d 1262 (Wash. App. Div. 2 2004), is very useful. That is hardly a surprising conclusion for me to draw, because the opinion quotes extensively, and approvingly, from the Dial-In Testimony article cited above. Without much hesitation or embarrassment, I will quote the opinion quoting our article; these passges express my views, of course, and I hope that judicial endorsement of those views will make them more widely accepted. Actually, what I am going to present here, for sake of completeness, is a little more than what the court quoted; the portions in italics were not quoted in the Powers opinion (and footnotes are omitted).

Now consider statements made in 911 calls and to responding police officers. A reasonable person knows she is speaking to officialdom--either police officers or agents whose regular employment calls on them to pass information on to law enforcement, from whom it may go to the prosecutorial authorities. The caller's statements may therefore serve either or both of two primary objectives--to gain immediate official assistance in ending or relieving an exigent, perhaps dangerous, situation, and to provide information to aid investigation and possible prosecution related to that situation. In occasional cases, the first objective may dominate--the statement is little more than a cry for help--and such statements may be considered nontestimonial, at least to the extent that they are not offered to prove the truth of what they assert. But ... these statements are often more detailed, providing significant information that the police do not need for immediate intervention but that may be useful to the criminal justice system. A reasonable person in the position of the declarant would realize that such information would likely be used in a criminal investigation or prosecution. Accordingly, such a statement should be considered testimonial, and the confrontation right should apply to it.
....
The more the statement narrates events, rather than merely asking for help, the more likely it is to be considered testimonial.

Thus, if any significant time has passed since the events it describes, the statement is probably testimonial. When, as is often the case, the 911 call consists largely of a series of questions by the operator, and responses by the caller, concerning not only the current incident but the history of the relationship, the caller's statements should be considered testimonial. When O.J. Simpson called 911 to report an assault by his girlfriend, his call was testimonial, not a plea for urgent protection.

Often, of course, a 911 call is such a plea. Even in this type of situation, a court should closely scrutinize the call. To the extent the call itself is part of the incident being tried, the fact of the call presumably should be admitted so the prosecution can present a coherent story about the incident. But even in that situation, the need to present a coherent story does not necessarily justify admitting the contents of the call. And even if the circumstances do warrant allowing the prosecution to prove the contents of the call, those contents generally should not be admitted to prove the truth of what they assert. If the contents of the call are probative on some ground other than to prove the truth of the caller's report of what has happened, then admissibility should be limited to such other ground. To the extent that the contents of the call are significant only as the caller's report of what has happened, such a report usually should be considered testimonial.

Richard Friedman & Bridget McCormack, Dial-In Testimony, 150 U. PA. L. REV. 1171, 1242-43 (2002).

Powers, 99 P.3d at 1265.

After reviewing the transcript of the 911 call at issue, the Powers court concluded, 99 P.3d at 1266:

We reject the State's request for a bright line rule admitting all 911 recordings because such a rule would likely result in the vice Crawford seeks to redress: A "capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude." 124 S.Ct. at 1371. Instead, we hold that the trial court, on a case-by-case basis, can best assess the proposed admission of a 911 recording as testimonial or nontestimonial and whether the statement originates from interrogation. Despite the seriousness of Powers' alleged conduct, T.P.'s call was not "part of the criminal incident itself" or a request for help entitling the State to prove their case without affording Powers the opportunity to cross-examine T.P., the right Crawford protects. Moscat, 777 N.Y.S.2d at 880. Instead, the record shows that T.P. called 911 to report Power's violation of the existing protective order and described Powers to assist in his apprehension and prosecution, rather than to protect herself or her child from his return. Thus, under Crawford, her statements were "testimonial" and were erroneously admitted at trial when she became unavailable.

See also People v. Lee, 2004 WL 2698879 (Cal. App. 2d Dist. Nov. 29, 2004) (rejecting Moscatand one of its follow-on cases, State v. Forrest, 596 S.E.2d 22 (N.C.2004): "Crawford sets forth a broad objective standard to determine if statements are testimonial. A court must decide if they '... were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. ([124 S.Ct. at p. 1364.) Some 911 calls fall within that definition. (See, e.g., [Cal. Penal Code] § 653x, subd. (a) [prohibiting 911 calls made 'with the intent to annoy or harass another person']").

Other recent cases have held that statements to responding police officers are testimonial, notwithstanding characterizations of them as excited utterances. See, e.g., Lopez v. State, 2004 WL 2600408 (Fla. App. Nov. 17, 2004) ("In this situation, the statement does not lose its character as a testimonial statement merely because the declarant was excited at the time it was made"; the declarant "knew that [the audience of the statement] was a policeman who was on the scene in an official capacity to investigate a reported crime."). And, very significantly, the California and Indiana Supreme Courts have both granted review of cases in which appellate courts had concluded that statements made to investigating officers in the field and characterized as excited utterances or spontaneous declarations were not testimonial. People v. Cage, 120 Cal.App.4th 770, 15 Cal.Rptr.3d 846 (Cal. App. 4th Dist. Jul. 15, 2004) (treating statement as non-testimonial because of lack of formality), review granted and opinion superseded, 99 P.3d 2, 19 Cal. Rptr. 3d 824, Oct. 13, 2004; Hammon v. State, 809 N.E.2d 945 (Ind. App. June 14, 2004) ("We . . . hold that when police arrive at the scene of an incident in response to a request for assistance and begin informally questioning those nearby immediately thereafter in order to determine what has happened, statements given in response thereto are not 'testimonial.' . . . We further note that the very concept of an 'excited utterance' is such that it is difficult to perceive how such a statement could ever be 'testimonial.'"), transfer granted Dec. 10, 2004; Fowler v. State, 809 N.E.2d 860 (Ind. App. June 14, 2004) (same court, same day, same language as Hammon), transfer granted Dec. 10, 2004. Predictions are hazardous, of course -- at the same time as it granted review of Cage, the California Supreme Court granted review of a decision, People v. Adams, 16 Cal. Rptr.3d 237, 120 Cal. App.4th 1065, effectively invalidating the notorious California Evidence Code § 1370 , which seems to have been designed precisely to allow admission of unconfronted testimonial statements (more on that, perhaps, in an other post) -- but it is at least encouraging that these state supreme courts are taking a hard look at appellate decisions that would effectively allow witnesses to testify informally to responding officers.