Excited Utterances, "Testimonial" Statements, and the Confrontation Clause
CRS Report for Congress
Excited Utterances, “Testimonial” Statements,
and the Confrontation Clause
December 14, 2005
Brian T. Yeh
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
Excited Utterances, “Testimonial” Statements, and the
Confrontation Clause
Summary
The United States Supreme Court will hear oral argument this term in appeals
from two state supreme court cases, Hammon v. Indiana and Davis v. Washington,
concerning the admissibility of “excited utterance” statements made by non-testifying
witnesses at criminal trials. In the landmark Crawford v. Washington case in 2004,
the Court held that the Sixth Amendment’s Confrontation Clause forbids hearsay
“testimonial” evidence from being introduced against the accused unless the witness
is unavailable to testify and the defendant has had a prior opportunity to cross-
examine the witness. However, the Crawford Court declined to provide a
comprehensive definition of “testimonial,” leaving such task “for another day.”
This omission has caused state and federal courts to struggle over which out-of-
court statements are “testimonial” for purposes of triggering the Crawford
requirements. The confusion has arisen most often in cases involving out-of-court
statements made by non-testifying witnesses to investigating police officers at a
crime scene or during 911 emergency calls. These “excited utterance” statements
have traditionally been admitted into evidence under an exception to the hearsay
exclusionary rules followed by courts. However, since Crawford, the lower courts
have disagreed over whether spontaneous utterances are considered “testimonial”
statements subject to the Sixth Amendment’s cross-examination mandate. These two
cases offer the Court an opportunity to resolve this uncertainty by more clearly
explaining what constitutes “testimonial” statements. The outcome has the potential
to impact significantly the strategy and method of prosecuting criminal cases,
particularly the use of out-of-court accusations against defendants in domestic
violence and gang-related crimes.
This report will be updated after the Supreme Court issues its decision.
Contents
Background ..................................................1
The Rules of Evidence and Hearsay...........................1
Excited Utterances.........................................1
The Confrontation Clause and Crawford v. Washington............2
Hammon and Davis............................................4
Statements Made to Investigating Police At Crime Scenes..........5
911 Calls................................................6
Comparison of the Hammon and Davis Definitions of Testimonial...7
Three General Approaches of Lower Courts.........................7
Per Se Non-testimonial.....................................7
Per Se Testimonial.........................................7
Case-by-Case Evaluation....................................8
Conclusion ...................................................9
Excited Utterances, “Testimonial”
Statements, and the Confrontation Clause
Background
The Rules of Evidence and Hearsay. The rules of evidence govern the
use of evidence1 in civil and criminal judicial proceedings. Courts apply these rules
when determining what types of evidence, such as testimony and tangible objects,
may be admitted at trial. In the federal court system, the Federal Rules of Evidence
(FRE)2 are followed, while many state and local courts have adopted their own rules
that often closely parallel the federal ones.
Hearsay is a particular type of evidence. Hearsay is a prior out-of-court
statement of a declarant,3 affirmatively offered at trial either orally by another person
or in written form, in order to prove the truth of the matter asserted.4 Under the FRE,
hearsay evidence is inadmissible unless it falls within one of the numerous
exceptions to the hearsay rules.5 One reason for the general prohibition on hearsay
is to minimize the danger of unreliable evidence from being introduced at trial. Since
hearsay is the statement of a person who is not testifying at trial under oath and not
subject to cross-examination, the reliability of the evidence is questionable.
Excited Utterances. If an out-of-court statement was made under certain
circumstances that help to ensure its reliability, it may be admissible evidence even
though it is hearsay. One such exception to the hearsay exclusionary rule is a
statement that qualifies as an “excited utterance.” The FRE defines an excited
utterance as a “statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.”6 The
underlying rationale of this exception is that such a spontaneous statement is likely
1 Evidence is a form of proof that helps to establish the existence or nonexistence of a fact.
2 See Federal Rules of Evidence, available at [http://judiciary.house.gov
/media/pdfs/printers/108th/evid2004.pdf].
3 A “declarant” is a person who makes a statement. FED. R. EVID. 801(c).
4 FED. R. EVID. 801(b). An example of hearsay: in order to prove that the traffic light was
red when a car drove through it, a bystander testifies at trial that he had heard a woman on
the street shout out, “The light is red!”
5 FED. R. EVID. 802.
6 FED. R. EVID. 803(2).
to be truthful since the shocked declarant had no time to reflect and deliberate before
making it.7
The Confrontation Clause and Crawford v. Washington. The Sixth
Amendment to the United States Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses8
against him.” The purpose of the Confrontation Clause is:
to prevent depositions or ex parte affidavits ... [from] being used against [the
defendant] in lieu of a personal examination and cross-examination of the
witness in which the accused has an opportunity, not only of testing the
recollection and sifting the conscience of the witness, but of compelling him to
stand face to face with the jury in order that they may look at him, and judge by
his demeanor upon the stand and the manner in which he gives his testimony
whether he is worthy of belief.9
Although the Confrontation Clause aims to protect similar values as the hearsay
rules, they do not overlap completely. Some evidence that might be admissible under
a hearsay exception may be found to violate the defendant’s constitutional right of
confrontation, while an out-of-court statement that is erroneously admitted in
violation of the exclusionary rule may not necessarily be a denial of the defendant’s
Sixth Amendment rights.10
In March 2004, the U.S. Supreme Court in Crawford v. Washington11 had the
opportunity to interpret the meaning of the phrase “witnesses against,” as it appears
in the Confrontation Clause.12 The Court determined that the phrase encompasses
more than just those individuals who actually testify at trial, but also includes anyone
who “bear[s] testimony.”13 In turn, testimony “is typically ‘[a] solemn declaration
or affirmation made for the purpose of establishing or proving some fact.’ An accuser
who makes a formal statement to government officers bears testimony in a sense that
a person who makes a casual remark to an acquaintance does not.”14 Thus, “not all
hearsay implicates the Sixth Amendment’s core concerns,” but an out-of-court
7 See Crawford v. Washington, 541 U.S. 36, 58 n.8 (2004) (explaining that at common law
historically, a spontaneous declaration was potentially admissible only if the statement was
made “immediat[ely] upon the hurt received, and before [the declarant] had time to devise
or contrive any thing for her own advantage”) (citation omitted).
8 U.S. CONST. amend. VI.
9 Mattox v. United States, 156 U.S. 237, 242-43 (1895).
10 California v. Green, 399 U.S. 149, 155-56 (1970).
11 541 U.S. 36 (2004).
12 For a detailed summary of this case, see CRS Report RS21888, Confrontation Clause
Reshaped: Crawford v. Washington, by Estela I. Velez Pollack.
13 Crawford, 541 U.S. at 51.
14 Id. (citation omitted). This example by the Crawford Court suggests that the
constitutional right to confrontation may not apply to a declarant’s hearsay statement to a
bystander and other individuals who are not agents of the government.
statement that is “testimonial” would trigger the defendant’s right “to be confronted
with the witnesses against him.”15 According to the Court, examples of “testimonial”
statements include, “at a minimum,” prior testimony offered at a preliminary hearing
or before a grand jury, formal statements made in response to police interrogations,
and sworn affidavits and depositions.16
In a landmark decision, the Crawford Court announced the new guiding
principle applicable to the rules of evidence in a criminal trial: the Confrontation
Clause bars the introduction into evidence of hearsay “testimonial” statements in a
criminal prosecution, unless the declarant is unavailable17 and the defendant has had
a prior opportunity to cross-examine the declarant. Only if testimonial statements
made by out-of-court declarants are tested “in the crucible of cross-examination” may
such evidence be admitted in a criminal trial without violating the defendant’s
confrontation rights.18
Unfortunately, the Crawford Court expressly stated that it would “leave for
another day any effort to spell out a comprehensive definition of ‘testimonial’.”19
This refusal to articulate a precise definition of a key term left the late Chief Justice
William Rehnquist, joined by Justice Sandra Day O’Connor, to observe in a
concurring opinion:
[T]he thousands of federal prosecutors and the tens of thousands of state
prosecutors need answers as to what beyond the specific kinds of “testimony” the
Court lists ... is covered by the new rule. They need them now, not months or
years from now. Rules of criminal evidence are applied every day in courts
throughout the country, and parties should not be left in the dark in this20
manner.
This assessment of the consequences of the Court’s deferral appears to have
been prescient. In the time since Crawford, federal and state courts have struggled
and disagreed over the meaning of “testimonial.” This “miasma of uncertainty”21 has
arisen most often in cases involving out-of-court statements made by non-testifying
witnesses to investigating police officers at an alleged crime scene or during tape
15 Id. However, “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the
Framer’s design to afford the States flexibility in their development of hearsay law.” Id. at
16 Id.
17 A declarant is “unavailable” if the declarant: 1) holds a particular privilege against
testifying; 2) persists in refusing to testify despite an order of the court to do so; 3) testifies
to a lack of memory concerning the statement; 4) is unable to be present or to testify at the
hearing because of death or then-existing physical or mental illness or infirmity; or 5) is
absent from the hearing and the proponent of the statement has been unable to procure the
declarant’s attendance by process or other reasonable means. FED. R. EVID. 804.
18 Crawford, 541 U.S. at 61.
19 Id. at 68.
20 Id. at 75-76 (Rehnquist, C.J., concurring).
21 United States v. Brito, 427 F.3d 53, 55 (1st Cir. 2005).
recordings of 911 emergency calls.22 Until Crawford was handed down, such
statements would probably have been admissible under the excited utterance
exception to the hearsay rule.
Applying Crawford to excited utterances, however, has divided courts across
the country into three categories: some finding excited utterances “nontestimonial”
and thus admissible under the hearsay exception, some ruling that spontaneous
statements are subject to the Confrontation Clause, and others electing to examine
the circumstances of each case to determine whether the declarant has provided “the
functional equivalent” of testimony to a government officer. In an effort to resolve
this conflict, the U.S. Supreme Court has agreed to hear oral argument this term in
two cases, Hammon v. Indiana23 and Davis v. Washington,24 concerning the
admissibility at criminal trials of “excited utterance” statements made by non-
testifying witnesses.
Hammon and Davis
Both of these cases involve domestic violence prosecutions in which the
government attempted to introduce out-of-court statements made by individuals who
declined to testify at trial. This scenario is not uncommon in domestic violence
cases. According to a recent law review article, “Batterers put hydraulic pressures
on domestic violence victims to recant, drop the case, or fail to appear at trial.”25 As
a consequence, the government frequently must go forward without the cooperation
or testimony of the alleged victim, by introducing into evidence their out-of-court
statements, or those of other eyewitnesses, made to responding police officers or to
911 operators.26 These hearsay statements are often the only other evidence of the
abuse besides the victim’s complaint.27 The statements may be admissible under the
“excited utterance” exception to the hearsay rule; however, a few states have
22 Although these statements are offered most frequently in domestic violence cases, they
may also be introduced in murder, robbery, burglary, and assault prosecutions. Leonard
Post, Eyes on Clarifying “Crawford;” Thousands of Cases Hang in Balance, NAT’L L. J.,
Oct. 24, 2005, at P1.
23 829 N.E. 2d 444 (Ind. 2005), cert. granted, 126 S. Ct. 552 (2005) (No. 05-5705).
24 111 P.3d 844 (Wash. 2005), cert. granted, 126 S. Ct. 547 (2005) (No. 05-5224).
25 Tom Lininger, Evidentiary Issues in Federal Prosecutions of Violence Against Women,
36 IND. L. REV. 687, 709 n.76 (2003) (citation omitted). It has been estimated that between
eighty and ninety percent of domestic violence victims recant their accusations or refuse to
cooperate with a prosecution. Id.
26 Stancil v. United States, 866 A.2d 799, 807 (D.C. 2005).
27 Lininger, supra note 25, at 709, 713 (noting that hearsay statements are used in domestic
violence prosecutions because the offender’s identity is often not readily apparent from the
physical evidence, or because the perpetrator may try to ascribe the victim’s injuries to a fall
or some other “innocent” accident).
specifically created hearsay exceptions for statements made by adult victims of
domestic violence.28
Statements Made to Investigating Police At Crime Scenes. In
Hammon v. Indiana, Hershel Hammon was convicted of domestic battery of his wife,
Amy Hammon, during an argument.29 Amy had been subpoenaed to testify, but she
failed to appear at the trial. Under Indiana’s excited utterance exception to the
hearsay rule, the trial court admitted a police officer’s testimony regarding Amy’s
responses to his questioning at the scene of the domestic disturbance, specifically that
Hershel had punched her and thrown her down into the glass of the gas heater.30
Hershel did not have a prior opportunity to cross-examine Amy about these
statements made to the police officer.
The Indiana Supreme Court upheld the admissibility of this evidence under state
law but then considered its constitutionality in light of Crawford. The court rejected
adopting a categorical approach to classifying excited utterances as either testimonial
or non-testimonial statements. Instead, the court announced its interpretation of
“testimonial,” which is to be applied by all Indiana state courts in future cases:
[A] “testimonial” statement is one given or taken in significant part for purposes
of preserving it for potential future use in legal proceedings. In evaluating
whether a statement is for purposes of future legal utility, the motive of the
questioner, more than that of the declarant, is determinative, but if either is
principally motivated by a desire to preserve the statement it is sufficient to31
render the statement “testimonial.”
Applying this test to the facts of the case, the Indiana court concluded that
Amy’s out-of-court statements did not qualify as “testimonial” and thus were not
subject to the Crawford requirements:
[T]he initial exchange between Mooney and Amy fell into the category of
preliminary investigation in which the officer was essentially attempting to
determine whether anything requiring police action had occurred and, if so, what.
Officer Mooney, responding to a reported emergency, was principally in the
process of accomplishing the preliminary tasks of securing and assessing the
scene. Amy’s motivation was to convey basic facts and there is no suggestion
that Amy wanted her initial responses to be preserved or otherwise used against
her husband at trial.32
28 Id. at 708, citing CAL. EVID. CODE § 1370 (allowing the admission of hearsay statements
by victims of domestic violence who are unavailable to testify at the time of the trial) and
OR. REV. STAT.§ 40.460(26) (admitting hearsay statements made by victim of domestic
violence within twenty-four hours of the incident, whether or not victim is presently
available as a witness).
29 Hammon, 829 N.E. 2d at 447.
30 Id. at 448.
31 Id. at 456.
32 Id. at 458.
The Hammon court opined that “responses to initial inquiries by officers
arriving at a [crime] scene are typically not testimonial.”33 Furthermore, police at a
crime scene are attempting to determine whether an offense has occurred, protect
victims, or apprehend a suspect, rather than trying to obtain and preserve statements
in anticipation of a potential criminal prosecution.34
911 Calls. In Davis v. Washington, Adrian Davis was convicted of violating
a protective no-contact order, when he assaulted Michelle McCottry.35 Shortly after
the attack, McCottry called 911, identified her assailant as Adrian Davis and
explained that he had used his fists to beat her. The government’s only witnesses at
trial were the two police officers who responded to the 911 emergency call, but they
could not testify as to the cause of McCottry’s physical injuries. The government
was unable to locate McCottry at the time of the trial and thus she did not testify.
The tape recording of the 911 call was the only evidence that connected Davis to the36
assault. The trial court admitted the 911 tape recording under the State of
Washington’s excited utterance exception.
The Washington Supreme Court explained that this case turned primarily on
whether McCottry’s 911 call constitutes a “testimonial” statement under Crawford.
The court distinguished 911 calls made by individuals seeking emergency help “to
be rescued from peril,” which would not be considered testimonial, from calls made
to the police to report a crime out of a desire “to bear witness,” which would more37
likely be testimonial. The court adopted a case-by-case approach to statements
made to 911 operators, stating that the circumstances of the 911 call must be
scrutinized “to determine whether the declarant knowingly provided the functional
equivalent of testimony to a government agent.”38 Finally, the court explained that
and that the portion of the call that is nontestimonial could be admitted without39
subjecting the entire statement to the Crawford requirements.
Under the facts of the case, the Washington high court ruled that there was no
evidence to suggest that McCottry sought to “bear witness” when she called 911.
Instead, she was in immediate, grave danger and called 911 to seek protection from
peril. An amicus curiae brief filed on behalf of the defendant argued that it is
“common knowledge” that 911 calls may later be used to prosecute the perpetrator
of the abuse.40 However, the court found no evidence to suggest McCottry had such
knowledge or that it influenced her decision to call 911. Consequently, the court
33 Id. at 457.
34 Id.
35 Davis, 111 P.3d at 847.
36 Id.
37 Id. at 849.
38 Id. at 850.
39 Id. at 851.
40 Id.
held that the portion of McCottry’s 911 call that identified Davis as her assailant was
nontestimonial and, as such, did not violate Davis’s confrontation rights.41
Comparison of the Hammon and Davis Definitions of Testimonial.
Although both the Hammon and Davis courts determined that the excited utterances
at issue in their respective cases were non-testimonial in nature, they formulated
different tests to evaluate them. The Hammon court reasoned that an excited
utterance should be considered testimonial “where a principal motive of either the
person making the statement or the person or organization receiving it is to preserve
it for future use in legal proceedings.”42 Thus, the Hammon approach is to focus on
the motivations of the questioner and the declarant. In contrast, the Davis court
advocates examining the circumstances which generated the excited utterance,
specifically whether the statement was made in an effort to obtain emergency help
from a dire situation, or whether it was made out of a desire to provide evidence for43
use in a future trial. The Davis approach concerns itself with the context in which
the out-of-court statement was made, in addition to the motivations of the questioner
and responder.
Three General Approaches of Lower Courts
The subtle difference between the Indiana and Washington supreme courts in
Hammon and Davis reflects the variety of approaches that lower courts have taken
in trying to apply Crawford to excited utterances. State and federal court efforts to
decide whether excited utterances may or may not be classified as “testimonial”
hearsay can be categorized into three main groups: per se non-testimonial, per se
testimonial, and case-by-case evaluation.
Per Se Non-testimonial. Several courts have decided that excited utterances
are necessarily non-testimonial in nature because they are made under the influence
of a stressful event and, as such, are “emotional and spontaneous rather than
deliberate and calculated” statements.44 The rationale for this view is that excited
utterances, “made without reflection or deliberation[,] are not made in contemplation
of their ‘testimonial’ use in a future trial.”45 Courts espousing this approach will thus
admit an excited utterance under the traditional hearsay exception, without requiring
the out-of-court statement to satisfy the Crawford cross-examination requirements.
Per Se Testimonial. Some courts believe that all statements made to a
government agent after an alleged crime has occurred are per se testimonial and thus
subject to Crawford. The highest state court in Massachusetts is a leading proponent
of this proposition:
41 Id.
42 Hammon, 829 N.E. 2d at 446.
43 Davis, 111 P.3d at 849.
44 United States v. Braun, 416 F.3d 703, 707 (8th Cir. 2005).
45 People v. Corella, 122 Cal. App. 4th 461, 469 (2004).
We conclude that questioning by law enforcement agents, whether police,
prosecutors, or others acting directly on their behalf ... is interrogation ... This
includes “investigatory interrogation,” such as preliminary fact gathering and
assessment whether a crime has taken place. Under our reading of Crawford
statements elicited by such interrogation are per se testimonial and therefore
implicate the confrontation clause. No further analysis is needed. The
statements are inadmissible unless the declarant testifies at trial or formally is46
unavailable and was previously subject to cross-examination.
However, the Massachusetts court allowed a narrow exception to its general
rule: “Statements made in response to emergency questioning by law enforcement to
secure a volatile scene or determine the need for or provide medical care are not per
se testimonial.”47 This qualification reflects the court’s acknowledgment of law
enforcement’s different functions: on the one hand, peacekeeping and community
caretaking, and on the other, detecting, investigating, and gathering evidence related
to a criminal offense.48 The focus of the “community caretaking” exception is on the
emergency nature of the situation, and statements made to law enforcement during
this stage would not be considered testimonial. Once the peril has passed and the
police enter the “investigatory” stage, any statements made to law enforcement would
be testimonial and subject to Crawford.
Case-by-Case Evaluation. The “overwhelming majority of courts”49 that
have considered excited utterances in the Crawford aftermath have rejected
categorical approaches, and instead favored a case-by-case, multiple-factor balancing
test to evaluate whether a statement qualifies as “testimonial” hearsay. However, as
the Hammon and Davis courts demonstrate, this approach can create disparity as to
the circumstances a court should examine. Among the relevant considerations are:50
!Whether the declarant was a victim or an observer
!The declarant’s purpose in speaking with the officer (e.g., to obtain
emergency assistance or to bear testimony)
!Whether it was the police or the declarant who initiated the
conversation
!The location where the statements were made (e.g., the declarant’s
home, a squad car, or the police station)
!The declarant’s emotional state when the statement was made
46 Commonwealth v. Gonsalves, 833 N.E. 2d 549, 556 (Mass. 2005).
47 Id. at 557.
48 Id. at 556. The court in Davis also advocates this distinction, although it may be
important to note that the Washington court ruled on statements made to 911 operators
whereas the Massachusetts court was considering responses given to police at a crime scene.
However, 911 operators may be civilian employees of the police department or even police
officers. See, e.g, People v. Cortes, 781 N.Y.S.2d 401, 405 (N.Y. Sup. Ct. 2004). In
addition, “[i]t is doubtful that in the face of immediate danger a caller [to 911] is
contemplating how her statements might later be used at trial.” Minnesota v. Wright, 701
N.W. 2d 802, 811 (Minn. 2005).
49 Wright, 701 N.W. 2d at 812.
50 Id. at 812-13.
!The level of formality and structure of the conversation between the
officer and declarant
!The officer’s purpose in speaking with the declarant (e.g., to secure
the scene, determine what happened, or collect evidence)
!If and how the statements were recorded
In addition to these factors, courts have disagreed whether a subjective or
objective test should be used in assessing the purpose or motivation of the declarant.
Most courts suggest that the proper inquiry is “whether a reasonable person in the
declarant’s position would anticipate the statement’s being used against the accused
in investigating and prosecuting the crime.”51 However, some observers have argued
that the objective or subjective intent of the declarant is irrelevant if the “defining
characteristic” of a testimonial statement is whether the statement is made to a
government agent.52 This view of the Confrontation Clause would thus scrutinize the
purpose of the questioner in eliciting the declarant’s excited utterance.
Conclusion
By granting certiorari to review the state court opinions in Hammon v. Indiana
and Davis v. Washington, the U.S. Supreme Court this term will have an opportunity
to clarify what kind of statements qualify for “testimonial” hearsay and thus are
subject to the constitutional cross-examination principles previously announced in
Crawford v. Washington. By articulating a definitive standard, the Court may resolve
the uncertainty among the lower courts that have tried to apply Crawford to excited
utterances. The Court’s decision in these two cases has the potential to significantly
alter the strategy and method of prosecuting criminal cases, particularly in domestic
violence and gang-related cases that often rely on out-of-court accusations in the
absence of the initial complaining witness.53 The outcome also may further limit the
hearsay rules of evidence, as the Court could determine that the Confrontation Clause
trumps the excited utterance exception, at least when such statements are made to
government agents.
51 Gonsalves, 833 N.E. 2d at 559.
52 Major Robert Wm. Best, To Be or Not To Be Testimonial? That Is the Question, 2005
ARMY LAW. 65, 74.
53 Gonsalves, 833 N.E. 2d at 559 (noting that “the prosecution can still present powerful
evidence that a crime has occurred and that the defendant was the perpetrator ... [such as]
the responding officer’s testimony as to the complainant’s physical appearance, her screams,
her medical records, and photographs ... and the fact that no one else was in a position to
have inflicted her injuries”).