National District Attorneys Association



Volume 17, Number 6, 2004


Weathering the Storm after Crawford v. Washington
(Part 2 of 2)

By Allie Phillips1

As a continuation from Part 1 of this article, this section will discuss how courts have interpreted the Crawford decision between March 8 and September 8, 2004, in relation to commonly found hearsay exceptions in child abuse prosecutions. As a result of the Crawford decision, the validity of firmly-rooted hearsay exceptions has been called into question, and performing the “indicia of reliability” or “trustworthiness” test concerning hearsay statements has been abolished because Crawford overruled the decision in Ohio v Roberts, 448 U.S. 56 (1980). Cited below are cases addressing firmly rooted hearsay exceptions in a post-Crawford environment.

Excited Utterances and 911 calls

Since Crawford, the firmly rooted hearsay exception of excited utterance has been the most discussed and controversial of all hearsay exceptions. As a result, courts have taken the approach of analyzing the intent of the declarant and determining whether the recipient of the excited utterance questions the declarant. For example, if a declarant provides an excited utterance that is simply a cry for help or for medical treatment, and if the witness would not reasonably expect the statement to be used in a prosecutorial manner at the time the utterance is made, then those utterances are being declared non-testimonial and are subject to a traditional hearsay analysis.2 However, if a declarant provides an excited utterance that could reasonably be expected to be used at a later trial (such as reporting a crime), or if a statement is made in response to questioning by the 911 operator, those utterances are being declared testimonial and will require the witness to testify.

In People v. Cortes, 2004 N.Y. Misc. LEXIS 663 (2004), at issue was an anonymous 911 call where a murder was described and the assailant’s description and location were relayed to the 911 operator. The Cortes court found the 911 tape to be testimonial and required the caller to testify in order to admit the tape. The court reasoned that, “The first emergency call on the 911 tape was made by a male observer who could not be located by the prosecution and was therefore unavailable for cross-examination at trial. … The 911 operator asked questions about the shooter’s location, description, and direction of movement, all necessary for the police to conduct their investigation. … The tape shows that the caller supplied information to the 911 operator in response to the operator’s questions and that he also gave relevant information before the question was asked. … The circumstances of some 911 calls, particularly those reporting a crime, are within the definition of interrogation. … The police department collects information about crimes through callers to 911 who either are aware of the needed information because they have been told by public communications or because they are specifically asked by operators. The method for taking the calls falls within the definition of interrogation. … The admission of 911 calls in New York is premised on the theory of spontaneous declaration, excited utterance or present sense impression. When a 911 call is made to report a crime and supply information about the circumstances and the people involved, the purpose of the information is for investigation, prosecution, and potential use at a judicial proceeding; it makes no difference what the caller believes.”

When determining whether an excited utterance or 911 tape will be deemed testimonial and require the declarant to testify, prosecutors should look to whether the utterances were made as a cry for help or to report a crime, and further look to whether the utterances were made in response to governmental questioning (such as questioning by a police officer or 911 operator). Knowing this information will assist prosecutors to determine whether the declarant must be made available at trial.

Medical Treatment/Diagnosis Statements

It is anticipated that courts will begin to analyze the status of the medical personnel in determining whether statements made during a medical examination have been made to a governmental agent. If medical personnel are utilized whose primary duties involve providing sexual assault examinations to victims brought in by police officers, then prosecutors should prepare for the medical provider to be labeled a governmental agent. At this time, however, courts are holding steady that statements made by victims of crimes to medical providers during an examination are non-testimonial and, therefore, fall into the firmly rooted hearsay exception of FRE 803(4).3 In State v. Vaught, 268 Neb. 316 (2004), a four-year-old victim of sexual abuse informed a physician during a medical examination about the identity of the defendant. The court found the statements by the child to the physician were non-testimonial. “[T]he victim’s identification of Vaught as the perpetrator was a statement made for the purpose of medical diagnosis or treatment. In the present case, the victim was taken to the hospital by her family to be examined and the only evidence regarding the purpose of the medical examination, including the information regarding the cause of the symptoms, was to obtain medical treatment. There was no indication of a purpose to develop testimony for trial, nor was there an indication of government involvement in the initiation or course of the examination.”

Child abuse professionals should be aware that courts may begin to assess the status of individuals who take children for sexual assault examinations (or request that an examination be conducted), as well as the status of the medical provider.

Present Sense Impression

Courts have yet to interpret Crawford in relation to FRE 803(1) present-sense impression hearsay statements.

State of Mind Statements

State of mind statements, a firmly rooted hearsay exception under FRE 803(3), have been found to be non-testimonial statements thus far in a post-Crawford environment.4 In particular is the unpublished decision of People v. Becerra, 2004 Cal. App. Unpub. LEXIS 2692 and 3702 (2004), where the court held that a child abuse victim’s statement to her mother that her head hurt was non-testimonial and, therefore, admissible at trial without the child’s testimony. Again, the courts are looking at whether the declarant would have reasonably intended the statement to later be used at trial,5 as well as at who receives the statement. Hearsay statements from frightened victims expressing their fear, from victims declaring the painfulness of current injuries, and from witnesses expressing concern about their welfare if they testify, are still non-testimonial statements after Crawford and require a traditional analysis under FRE 803(3).

Statements Against Penal Interests

Statements that are contrary to a person’s penal interests have been interpreted as not testimonial and, therefore, do not require a Crawford analysis.6 In People v. Deshazo, 469 Mich. 1036 (2004), the Michigan Supreme Court conducted the two-pronged analysis of whether a statement against penal interest by a non-testifying co-defendant was made to a governmental agent and was reasonably expected by the declarant to be used later at trial. In ruling that the statement was non-testimonial, the court held “a non-testifying co-defendant told the witness that defendants hired him to kill the victim, is admissible as a statement against penal interest under MRE 804(b)(3). The co-defendant’s statement bears adequate indicia of reliability, in that it was voluntarily given to a friend or confederate, and was uttered spontaneously without prompting or inquiry. The statement was not made to law enforcement officers.”

Prior Testimony Subject to

Many courts have held that if an unavailable witness testified at a previous hearing and the defendant was afforded the opportunity to cross-examine the witness, upon a proper showing of unavailability, the prosecutor may admit the testimonial transcript at trial.7 However, in People v Fry, 92 P.3d 970, 2004 Colo. LEXIS 529 (Colo. Sup. Ct.), a witness testified at preliminary hearing and the defense attorney did not cross-examine the witness although given the opportunity to do so. Before trial, the witness died. The prosecutor admitted the deceased witness preliminary hearing testimony at trial. The Colorado Supreme Court applied Crawford to a unique state law regarding cross-examination at preliminary hearings and overturned the conviction on the basis that preliminary hearings in Colorado do not provide an adequate opportunity to cross-examine witnesses. Therefore, Crawford was violated because the prior testimony was not subject to cross-examination.

Although the Crawford decision requires that an “opportunity” for cross-examination be afforded to the opposing party, please consult any state law or local court rules that may impose a more stringent requirement than set forth in Crawford.

How Courts are handling issues of forfeiture

If a defendant’s wrongdoing results in a witness being unavailable to provide testimony against the defendant, a court can invoke the forfeiture-by-wrongdoing exception to the confrontation clause (see FRE 804(b)(6)) and allow the prosecutor to submit admissible hearsay at trial. In the wake of Crawford, several courts have upheld the forfeiture-by-wrongdoing rule when a defendant’s conduct has resulted in the witness being unavailable to testify.8 For example, in State v. Meeks, 88 P.3d 789 (Kan. 2004), the court held that when the defendant killed the victim, he forfeited the right to claim a violation of the confrontation clause when the police officer at the scene of the crime testified to statements made by the victim (before dying) identifying the defendant as the shooter.

For more information regarding forfeiture-by-wrongdoing, please read Using the Crawford v. Washington “Forfeiture by Wrongdoing” Confrontation Clause Exception in Child Abuse Cases.9

Conclusion: A Simple Formula for Applying Crawford

When deciding whether a hearsay statement will be admissible at trial without the declarant testifying, here is a simple procedure to follow:

Step One: Is the hearsay statement testimonial? Was the statement made to a government agent? Did a government agent question the declarant? Would the declarant reasonably expect that the statement would later be used at trial?

  1. If the answer is no, then utilize your state’s Rules of Evidence to determine whether the hearsay statement falls into a recognized exception which may obviate the need for the declarant to testify.

  2. If the answer is yes, then proceed to step two.

Step Two: Have the declarant testify and be subject to cross-examination.

  1. If the declarant is unavailable10 but testified at a prior proceeding and was subject to cross-examination, the transcript of the prior testimony will be admissible and other admissible hearsay statements will also be allowed (such as statements made during a forensic interview).

  2. If the witness/victim is unavailable and has never testified in any proceeding in the case, then all hearsay statements will be inadmissible.

To receive continuing updates to court opinions interpreting the Crawford decision, please contact APRI’s National Center for Prosecution of Child Abuse or log on to our Website at to request an outline of cases via e-mail.


1 Allie Phillips is a Senior Attorney with APRI’s National Center for Prosecution of Child Abuse in Alexandria, Virginia and the National Child Protection Training Center in Winona, Minnesota.

2 People v. Moscat, 777 N.Y.S.2d 875 (N.Y. Sup. Ct. 2004) (911 call deemed non-testimonial and admissible as an excited utterance, “It is generated not by the desire of the prosecution or the police to seek evidence against a particular suspect; rather, the 911 call has its genesis in the urgent desire of a citizen to be rescued from immediate peril.”); State v. Forrest, 596 S.E.2d 22 (N.C. Ct. App. 2004) (spontaneous statements by victim made after being rescued from a kidnapping and made to non-questioning police officer were excited utterances and non-testimonial); State v. Orndorff, 2004 Wash. App. LEXIS 1789;  State v. Barnes, 2004 Me. LEXIS 124 (2004); People v. Rivera, 778 N.Y.S.2d 28 (N.Y. App. Div. 1st Dept 2004); Leavitt v. Arave, 371 F.2d 663 (9th Cir. Idaho 2004).

3 People v. Cage, 120 Cal. App. 4th 770 (2004).

4 United States v. Dorman, 2004 U.S. App. LEXIS 14993 (6th Cir. Ky 2004); People v. Becerra, 2004 Cal. App. Unpub. LEXIS 2692 and 3702 (2004); Evans v. Luebbers, 371 F.3d 438 (8th Cir. Mo 2004). 

5 Horton v. Allen, 370 F.3d 75 (1st Cir. Mass 2004).

6 People v. Cervantes, 118 Cal. App. 4th 162, 12 Cal. Rptr. 3d 774 (Cal. App. 2d Dist. 2004); Gutierrez v. Dorsey, 2004 U.S. App. LEXIS 13987 (10th Cir. N.M. 2004).

7 See cases cited in endnote 3.

8 People v. Moore, 2004 Colo. App. LEXIS 1354 (Colo. Ct. Ap. 2004) (defendant murdered his wife, but excited utterances made by the victim to a police officer were admissible at trial under the forfeiture-by-wrongdoing rule)

9 Harbinson, Tom, Reasonable Efforts, Volume 1, Number 3 (2004). This article may be obtained by calling APRI or via our website at

10 In United States v. Hite, 364 F.3d 874 (7th Cir 2004), the court interpreted Crawford by holding that prosecutors still must follow the federal rule of good faith in trying to find a witness in order to successfully argue that the witness is unavailable. See also, Cooper v. McGrath, 314 F.Supp. 2d 967 (S.D. Cal. 2004) where the court held that prosecutors must exercise due diligence in finding witness before submitting preliminary hearing transcript testimony at trial.