Case Summaries: Criminal - Defendant's Right of Confrontation

The Ohio Supreme Court ruled that statements made by a child abuse victim to interviewers at a child advocacy center that were made for medical diagnosis and treatment were “nontestimonial” and were thus admissible without violating defendant’s Sixth Amendment confrontation rights.  However, statements made by a child victim to interviewers at the child advocacy center that served primarily a forensic or investigative purpose were “testimonial” and their admission at trial violated defendant’s confrontation rights.  The Supreme Court therefore affirmed in part, reversed in part, and remanded the case to the court of appeals to consider whether the admission of the child’s forensic statements were harmless error.  State v. Arnold, 126 N.E.2d 775 (2010).

Keywords: hearsay, victimless prosecution, minor victim

Date: 12/1/10

Statements Made By Victim Admissible or Inadmissible Depending On Timing of Statements

Statements made by a domestic violence victim to a police officer when the victim was running out of her apartment waving her arms and yelling were nontestimonial in nature and thus admissible. However, statements made by victim after the suspect was placed in custody in the police car and the emergency of the situation had concluded were testimonial and thus inadmissible under the Confrontation Clause of the Sixth Amendment. State v. McKenzie, 2006-Ohio-5725 (8th App. Dist., Cuyahoga, 11/2/06).

Keywords: Crawford "hearsay exception" credibility

Date: 6/3/2008

Statements Made By DV Victim To Police officer Were Nontestimonial

The statements of the domestic violence victimwho was bleeding from the face, upset, and cryingwere nontestimonial "excited utterances" because the officer was assisting with an "ongoing emergency," the statements were made with the primary purpose of enabling the police to meet the ongoing emergency, and the statements were not made under circumstances which would lead an objective witness reasonably to believe that the statements would be available for use at a later trial. Cleveland v. Colon, 2007-Ohio-269 (8th App. Dist., Cuyahoga, 1/25/07).

Keywords: Crawford "hearsay exception"

Date: 6/3/2008

Primary Purpose Test Applicable To Hearsay Statements Made In Course of Police Interrogation

In determining whether a child declarants statement is testimonial or nontestimonial, the court should apply the "primary purpose" test. However, the age of a declarant is not determinative of whether or not a testimonial statement has been made during a police interrogation. In this case, the statements made by the three-year-old child declarant were testimonial in nature, and thus inadmissable under the Confrontation Clause of the Sixth Amendment. Defendants convictions of aggravated murder, domestic violence, endangering children, aggravated burglary, and violation of a protection order were reversed and the case remanded to the trial court. State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637.

Keywords: Crawford "hearsay exception"

Date: 6/3/2008

Statements Made By Rape Victim To Nurse Practitioner Were Nontestimonial

The Ohio Supreme Court applied the "objective witness" test in determining whether an adult rape victim had made testimonial statements to a nurse practitioner during a medical exam at a hospital DOVE unit specializing in health care for victims of rape and domestic violence. Under the "objective witness" test, a statement is testimonial if made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Courts should focus on the expectation of the declarant at the time the statement was made. Applying the "objective witness" test, the statements made by the rape victim were nontestimonial because the victim could have reasonably believed that the statements would be primarily used for health purposes. State v. Stahl, 111;Ohio St.3d 186, 2006-Ohio-5487.

Keywords: Crawford "hearsay exception"

Date: 6/3/2008

911 Tape Admissible In DV Prosecution

The court of appeals ruled that the trial court properly admitted the tape of the 911 call to the police dispatcher in the criminal trial because the 911 tape was not testimonial hearsay and thus its admission did not violate the defendants rights under the Confrontation Clause of the Sixth Amendment. In addition, the police detectives testimony as to the subject matter and chain of custody of the tape, along with the victims testimony concerning the domestic violence incident, was sufficient foundation to authenticate the 911 tape. State v. Mitchell, 171 Ohio App.3d 275 (8th App. Dist., Cuyahoga, 4/12/07).

Keywords: Crawford issues victimless evidence prosecution

Date: 3/27/2008

U.s. Supreme Court Clarifies Scope of Doctrine

Most statements made by a domestic abuse victim in response to the 911 operators questions while the defendant was allegedly in the victims house in violation of a no-contact order, in which the victim identified her assailant, were not "testimonial" and, therefore, were not subject to the Confrontation Clause of the Sixth Amendment. The victim was speaking about events as they were actually happening, rather than describing past events, and the primary purpose of the 911 operators interrogation was to enable police assistance to meet an ongoing emergency caused by the physical threat to the victim. On the other hand, an alleged domestic battery victims written statements in an affidavit given to the police officer who responded to the domestic disturbance call were "testimonial" and, therefore, subject to the Confrontation Clause. There was no emergency in progress when the statements were given, as the alleged battery had happened before the police arrived, so that the primary purpose of the officers interrogation was to investigate a possible past crime. The Supreme Court stated three general principles. First, statements taken by police officers in the course of an interrogation are "nontestimonial" when they are made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Second, statements taken by police officers in the course of interrogation are " testimonial" when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Third, a conversation which begins as an interrogation to determine the need for emergency assistance may evolve into testimonial statements subject to the Confrontation Clause once that purpose has been achieved, and trial court should, through in limine procedure, redact or exclude the portions of any statement that have become testimonial. Davis v. Washington (2006), 126 S.Ct. 2266, 165 L.Ed.2d 224.

Keywords: "right of confrontation" "defendant's rights"

Date: 9/12/2006

Victims Statements To officer Held Admissible As Excited Utterance Over Crawford Objections

The trial court did not err when it admitted the domestic violence victims statements to the police officer as excited utterances, therefore permitting the officer to testify as to what the victim had said at the scene. The victims demeanor fit within the definition of excited utterance, as it was apparent that she was injured, bleeding, and emotionally distraught at the scene, and her statements were not the product of reflective thought. City of Akron v. Hutton, C.A. No. 22425, 2005-Ohio-3300 (9th Dist., Summit, 6/30/2005).

Keywords: hearsay,victimless,Sixth Amendment

Date: 8/22/2005

911 Recording Admissible, But Victims Statements To officer Inadmissible, Under Crawford Analysis

In a domestic violence-related assault case, the defendant argued that the trial court erred when it permitted the state to enter the recording of a female callers 911 call into evidence and by allowing the responding police officer to testify regarding statements made to him by the victim. The trial court properly admitted the 911 call under the hearsay exception for excited utterances, since a 911 call is usually "a hurried and panicked conversation," and such calls can usually be seen as part of the criminal incident itself because they occur when an assault or homicide is still in progress or in the immediate aftermath of the crime. However, the statements made by the victim to the officer at the scene were clearly testimonial and of the type contemplated in Crawford. A reasonable person in the victims circumstances would anticipate that the alleged statements would be used against the offender in an investigation and prosecution. Therefore, the admission of the officers testimony concerning the victims hearsay statements deprived the defendant of his right to confrontation, and the judgment of the trial court was reversed. State v. Byrd, 160 Ohio App.3d 538, 2005-Ohio-1902 (2nd Dist., Montgomery, 4/05/2005).

Keywords: victimless,Sixth Amendment

Date: 8/22/2005

911 Tape Recording and Victims Preliminary Hearing Testimony Are Admissible Over Crawford Objections

The 911 tape recording of the domestic violence victims phone call was not testimonial under Crawford and was thus admissible. A 911 call "is not so much testimony as a desperate cry for help," and Crawfords holding does not apply to statements that are subject to "common-law exceptions to the hearsay rule, such as excited utterances or present sense impressions." Additionally, the victims preliminary hearing testimony in this case was admissible and did not deprive the defendant of his right to confrontation because the defendant had an adequate chance to cross-examine the witness at the preliminary hearing. State v. Newell, Case No. 2004CA00264, 2005-Ohio-2848 (5th Dist., Stark, 5/31/2005).

Keywords: victimless,Sixth Amendment,hearsay

Date: 8/22/2005

Victims Statements To Sexual Assault Nurse Were Admissible Over Crawford Objections

The State argued that the trial court erred in finding that the victims statements to a sexual assault nurse were testimonial and excluding them under Crawford in the defendants trial on rape and domestic violence charges. The court of appeals agreed and reversed the trial courts granting of the defendants motion in limine. The legal test, as set forth in U.S. v. Cromer, 389 F.3d 662 (6th Cir. 2004), is whether a reasonable person would have realized that those statements would likely be used in investigation or prosecution of a case. The court of appeals found that a reasonable person under the circumstances would have no reason to believe that her statements to a medical counselor would later be used at trial. No law enforcement officers were present at any time before, during, or after the sexual assault examination. Further, the victim only knew that she was being sent to the sexual assault nurse/counselor for treatment and the collection of physical evidence. State v. Lee, C.A. No. 2262, 2005-Ohio-996 (9th Dist., Summit, 3/09/2005).

Keywords:

Date: 8/22/2005

Victims Statements To Police officer Held Admissible Over Crawford Objections

Over the objection of defense counsel, a Bexley police officer provided testimony regarding the details of a domestic violence incident relayed to him by the domestic violence victim. However, noting that the victim was "shaking and crying," and her lip had begun to swell, the court of appeals concluded that the trial court reasonably could have found the victims declarations were made while she was under the stress of excitement caused by the altercation, and demonstrate the unreflective and sincere expression of her actual impressions and beliefs. Crawford only applies to statements that are, in fact, hearsay, and that are not subject to common-law exceptions to the hearsay rule, such as excited utterances. Therefore, the admission of the victims statement through the police officer did not violate the defendants rights under the Confrontation Clause of the Sixth Amendment, and the trial court did not abuse its discretion in admitting the statement under the excited utterance exception to the hearsay rule. State v. Cannaday, Case No. 04AP-109, 2005-Ohio-1513 (10th Dist., Franklin, 3/31/2005).

Keywords: victimless

Date: 8/22/2005