Statements Made at the Scene of a Domestic Violence Crime
Oct. 26, 2022
Can the State of Texas move forward with prosecution in a domestic violence case if the complainant does not come to court? In some cases, yes. Many times, there are statements made at the scene to officers or 911. Whether those statements can be admitted to the jury without the complainant there, is controlled by the specific facts of each case. Statements made previously and then latter offered in court are hearsay, unless there is a hearsay exception. Even if there is a hearsay exception, these statements could still be inadmissible because a defendant in a criminal trial has the constitutional right to confront and cross examine accusers.
Whether the hearsay statements made by the complainant are admissible under the exited utterance exception.
Whether admitting the statements made by the complainant are violative of the Confrontation Clause of the Texas and United States Constitutions.
Harm analysis and State’s burden of proof.
Are a Complainant’s Statements to the Police or 911 Admissible at Trial?
An excited utterance is “[a] statement relating to a starling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex. R. Evid. 803(2). The basis for the excited-utterance exception is psychological in nature, in that, when a person is in the instant grip of violent emotion, excitement, or pay, he or she ordinarily loses the capacity for reflection necessary to fabricate a falsehood, such that “the truth will come out.” See So, an excited utterance is deemed inherently trustworthy “because it represents and event speaking through the person rather than the person speaking about the event.” Id. To qualify for admittance as an excited utterance: (1) the statement must be the product of a startling event that produced a state of nervous excitement; (2) the declarant must have dominated by the excitement of the event; and (3) the statement must relate to the circumstances of the startling event. See The critical question in making this determination is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the startling event or condition at the time the statement was made. In other words, was the statement made “under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.”
Are the Complainant’s Hearsay Statements Admissible If the Complainant Is Not Present?
Even if an out-of-court statement qualifies for admission into evidence as an exception to hearsay under the rules of evidence, its admission must still face the defendant’s Sixth Amendment right of confrontation. See Crawford v. Washington. So, evidentiary rule hearsay exceptions notwithstanding, the Sixth Amendment prohibits “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Generally, the critical inquiry in the resolution of this issue is whether the out-of-court statement was “testimonial” in nature, as only testimonial statements cause the declarant to be a “witness” within the meaning of the confrontation Clause of the Sixth Amendment.
Typically, in family-violence cases, the hearsay statements at issue are the victim’s statements to the police (including 911 calls) and other first responders. The Supreme Court has declared:
Statements are non-testimonial 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. See Davis v. Washington.
Resolution of testimonial v. non-testimonial issue is highly fact-specific and must necessarily be done on a case-by-case basis. In determining whether a statement is testimonial a court must review the objective purpose of the statement, not the declarant’s expectations. If the objective purpose of the interview is to question a person about past events and that person’s statements about those past events would likely be relevant to a future criminal proceeding, then they are testimonial. With regard to statements made by a complainant or witness, the distinction between testimonial and non-testimonial is determined by a consideration of 5 factors:
whether the situation was still in progress
whether the questions sought to determine what is presently happening rather than what had happened in the past;
whether the primary purpose of the questioning was to render aid rather than to memorialize a possible crime;
whether the questioning was conducted in a location away from the alleged perpetrator; and
whether the events were deliberately recounted in a step-by-step fashion.
Statements made during an ongoing emergency are nontestimonial. However, statements detailing the assault, which were elicited after any emergency is extinguished, are testimonial and not admissible. The Supreme Court held, that because there was no apparent emergency in progress, after the officers’ initial encounter indicated that there was no immediate threat of physical harm, the officer’s continued questioning of the wife was not for the purpose of determining “what [had] happened,” such that the wife’s response to such questioning was testimonial in nature. Furthermore, the proponent of the evidence has the burden to establish that the proffered statement is not testimonial in nature.
As recent opinion from the First Court of Appeals, reversed and remanded for a new trial by deciding the trial court abused its discretion by allowing the officer to testify about what the complainant had told him and also by admitting the 911 call reporting the offense. In that case, the complainant called 911 and reported that her boyfriend had just choked her, pulled her hair and left scratch marks on her neck. The responding deputy arrived 7-10 minutes later and the complainant explained her boyfriend had grabbed her hair and pulled her head to her knee, then grabbed her neck with both hands and squeezed and also said she was not able to breathe. At that time, the suspect returned to the scene, spoke with the deputy and admitted they had been in an altercation. At trial, the state sought admission of the 911 call and the statements complainant made on the scene, arguing they were nontestimonial. The Defendant objected, arguing such admission was hearsay and would violate the Confrontation Clause. The trial court overruled and held the statements were nontestimonial. At trial, the 911 call was admitted, the deputy testified to the complainant’s statements and further testified that complainant provided a written statement consistent with what she had told him.
In reviewing this admission for error, the appellate recognized that after a defendant raises a Confrontation Clause objection, the burden shifts to the State to prove: (1) that the evidence does not contain testimonial hearsay statements, or (2) that the evidence does contain testimonial hearsay statements, but that such statements are nevertheless admissible. In determining testimonial verses nontestimonial, the appellate court explained, “We consider whether the primary purpose of the call and the statements were to report an ongoing emergency. In reversing and remanding for a new trial, the Court of Appeals held that what the complainant told 911 and what she told the deputy were testimonial in nature and their admission violated the Defendant’s rights under the Confrontation Clause.
Similarly, the 1st court of appeals, held that although complainant had recently been assaulted, she was able to wait for emergency assistance away from the suspect outside her residence and because they were not together when the officer arrived, there was no evidence on an ongoing conflict. Additionally, the complainant’s statements described past events rather than evens east hey were actually happening. In reversing the judgement of the trial court, the appellate court held her statements were testimonial “because they served to establish or prove past events potentially relevant to later criminal prosecution.” The court also noted that because the complainant did not testify at trial, and the officer’s testimony regarding the complainant’s out-of-court statements provided evidence critical to establish the elements of the offense, the court concluded the statements were admitted in violation of the Confrontation Clause of the Sixth Amendment.
Likewise, an appellate court concluded the defendant was harmed by the inadmissible out-of-court testimonial statements and reversed and remanded to the trial court. In that case, the issue was whether the non-testifying complainant’s out-of-court statements to the police officer who responded to her 911 call were testimonial in nature. When the officer responded to the 911 call, the complainant was upset, crying and angry. In response to his question, she replied that he slapped her on the face, shoved her off the bed, put his hand on her throat, and said he was going to kill her. The complainant did not appear at trial. In determining reversal of the trial court’s judgement was appropriate, the court determined that the statements made to the officer at the scene were made to describe past event and were therefore testimonial. “Because the complainant’s out-of-court statements were testimonial and the State did not carry its burden of showing she was unavailable and that appellant had a prior opportunity to cross-examine her, the trial court erred in admitting the out-of-court testimonial statements in violation of the confrontation clause under Crawford.
Another court dealt with a similar issue of statements made to an officer on scene. In that case the officer arrived on scene to find the complainant on the driveway “shaken up” and “upset.” She told the officer that her boyfriend was in the house. The officer then detained the defendant. The complainant told the officer that he locked her in the bedroom, hit her and kicked her. The court applied the 5-factor test to determine whether the statements were testimonial. The court held that any emergency that may have existed was over, and the officer’s subsequent questions were designed to discover what happened in the past and to memorialize events for later prosecution and that therefore her responses were testimonial. In reversing and remanding the judgement of the trial court, the appellate court held that because the complainant did not testify at trial and therefore the officer provided testimony as to all the elements, it was constitutional error to admit these statements.
After a determination that admitted statements were testimonial, the appellate court must then conduct a harm analysis considering Texas Rule of Appellate Procedure 44.2(a). The Court explained that “[f]or violations of constitutional rights, we must reverse the judgment unless we can determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” The court further explained that in “reviewing harm for violations of the Confrontation Clause, we consider (1) how important was the out-of-court statement to the State’s case; (2) whether the out-of-court statement was cumulative of other evidence; (3) the presence or absence of evidence corroborating or contradicting the out-of-court statement on material points; and (4) the overall strength of the prosecution’s case.”