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Confrontation – Hearsay – Recent Perception / Excited Utterance (- & Statement Not Admitted For Its Truth)

State v. Donavin Hemphill, 2005 WI App 248
N.B. The holding quoted below was overruled, in State v. Mark D. Jensen, 2007 WI 26, ¶24n. 8. In other words, “a spontaneous statement to a police officer” is not, as a matter of law, non-testimonial.
For Hemphill: Jeffrey Jensen

Issue/Holding: An out-of-court statement by a witness to police (responding to a report of “trouble” involving a “subject with a gun”) which pointed out the defendant (“Those are the ones. That’s them.”) did not violate confrontation:

¶11      The statement made by Fields in the instant case does not fall into any of the identified categories of “testimonial” statements. This was not a statement extracted by the police with the intent that it would be used later at trial. It was not an interrogation situation. Fields offered the statement without any solicitation from police. It was a spontaneous statement made to a responding police officer. Like the foreign cases cited by the State in its brief, the Fields statement was offered unsolicited by the victim or witness, and was not generated by the desire of the prosecution or police to seek evidence against a particular suspect. See People v. Moscat, 777 N.Y.S.2d 875 (N.Y. Crim. Ct. 2004); State v. Forrest, 596 S.E.2d 22 (N.C. Ct. App. 2004); People v. Corella, 18 Cal. Rptr. 3d 770 (Cal. Ct. App.  2004).

Probably haven’t heard the last of this sort of problem. Two problems, really: the first, procedural (whether the statement can be viewed as non-hearsay and thus outside confrontation); the second, substantive (whether the statement satisfied confrontation). As to the first, the trial court ruled that the statement wasn’t offered to prove the truth of the matter but to explain why the officers followed the subjects from the scene, hence didn’t fall within Crawford, ¶6. A seriously problematic view, given that the jury wasn’t burdened with a limiting instruction (how was the jury to know that it couldn’t use the statement as proof that they were, in point of fact, “the ones” the police were after?). And compare State v. Branch, 182 N.J. 338, 865 A.2d 673 (2005) (detective’s “gratuitous” suggestion that defendant’s photo was put in an array because of information the detective received held to violate confrontation; “In contexts other than a photographic identification, the phrase ‘based on information received’ may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person.”) And U.S. v. Maher, 1st Cir No. 05-1598, 7/6/06 (“The dividing line often will not be clear between what is true background to explain police conduct (and thus an exception to the hearsay rule and thus an exception to Crawford) and what is an attempt to evade Crawford and the normal restrictions on hearsay. But we are on firm ground in warning prosecutors of the risks they face in backdoor attempts to get statements by non-testifying confidential informants before a jury.”); U.S. v. Silva, 380 F.3d 1018 (7th Cir. 2004):

So to what issue other than truth might the testimony have been relevant? The prosecutor contends that most of the statements were admissible to show “the actions taken by [each] witness”. Allowing agents to narrate the course of their investigations, and thus spread before juries damning information that is not subject to cross-examination, would go far toward abrogating the defendant’s rights under the sixth amendment and the hearsay rule. … Under the prosecution’s theory, every time a person says to the police “X committed the crime,” the statement (including all corroborating details) would be admissible to show why the police investigated X. That would eviscerate the constitutional right to confront and cross-examine one’s accusers. See Crawford v. Washington, 124 S. Ct. 1354 (2004).

See also U.S. v. Price, 3rd Cir No. 05-2968, 6/30/06 (unfavorable result on particular facts, but fairly detailed discussion): “courts must not allow the government, in the guise of ‘background explanation’ testimony by police officers, to put before the jury eyewitness accounts of bad acts by the defendant that the jury would not otherwise have heard. When evidence admitted as ‘background’ includes such facts, we will exclude or redact it to the extent that its actual evidentiary function is not the (legitimate) one for which it was admitted.”But the court of appeals in Hemphill doesn’t adopt the trial court’s analysis and thus this problem is left for another day; instead, the court treats the statement as a hearsay exception, which gets to the second problem. (This is made clear in the court’s ensuing Roberts analysis, ¶13, that the statement was reliable as either a present sense impression or excited utterance.) Indeed, the three supporting cites are all excited-utterance cases of one type of another. The ensuing analysis will have to be read in light of Hammon v. Indiana, 05-5705, 6/19/06 (police interview of complainant at scene, shortly after incident, elicited “testimonial” statement), and the companion case, Davis v. Washington (accusation made in 911 call immediately after incident “nontestimonial”). Hemphill seems to fall factually somewhere between these two cases (the police were on the scene, same as in Hammon, but the alleged perpetrator wasn’t within police control, unlike Hammon but like Davis). Was there an ongoing emergency? But even if there wasn’t (because the perp might have been lurking about), it might or might not matter that the statement wasn’t made in response to police questioning. That seems like a mere detail — after all, the presence of the police undoubtedly prompted the statement, and the declarant must have known the accusation would later be used in court. And, indeed, the Court trends strongly in that direction, in footnote 1:

Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations—which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cobham that was plainly not the result of sustained questioning. Raleigh’s Case, 2How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate.

Also worth noting: the mere fact that the statement satisfies a hearsay rule doesn’t throw it outside confrontation — Hammon deemed the statement “testimonial” though admitted into evidence as an excited utterance.


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