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Confrontation – Hearsay: “Testimonial” Statements – Police Interview of Victim at Hospital – Line-Up Identification

State v. Daniel D. King, 2005 WI App 224
For King: Scott D. Obernberger

Issue/Holding: An interview by a detective of the victim at a hospital shortly after the charged assault, admitted into evidence as an excited utterance, is deemed “testimonial” (and, therefore, inadmissible under the confrontation clause) because it involved “response(s) to ‘structured police questioning,’” ¶18.

Result seems unassailable in light of Hammon v. Indiana, 05-5705, 6/19/06 (police interview of complainant at scene, shortly after incident, elicited “testimonial” statement):

Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.1

The Court makes clear in footnote 1 that it is not necessarily requiring that there be “interrogation”; indeed, the footnote all but says it’s at least possible to have a testimonial statement without interrogation.See also discussion in Wall v. State, 184 S.W.3d 730 (TX Cr. App. 2006) (rejecting “any per se or categorical approach” and finding on particular facts that police hospital interview of victim was testimonial). But see People v. Cage, Cal SCt No. S127344, 4/9/07 (statement to deputy sheriff at hospital emergency room testimonial, but statement to treating doctor who asked “what happened” nontestimonial).

The court also holds that the victim’s identification of King at a pre-trial line-up was “testimonial” and therefore violated confrontation, ¶21.

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