Define That Term #236
The New York Legal Blog Round Up

Crawford Violation or Excited Utterance?

Gavel2In People v Nieves-Andino, 2007 NY Slip Op 05584, the victim of a shooting who later died, Jose Millares, was discovered lying in the road by a police officer responding to a 911 call regarding a shooting. The responding officer summoned an ambulance and then asked Millares for his name and other pedigree information.  He then asked him what had happened.  Millares responded that he'd argued with a man named Bori who had shot him three times.  He also provided Bori's address. 

The defendant alleged that admitting the victim's statement at trial would violate his 6th Amendment right to confront the witnesses against him as set forth in Crawford v. Washington, while the prosecution argued that the statement constituted an exception to the hearsay rule as an excited utterance and its admission would not violate the 6th Amendment.

The Court first explained the underlying case precedent prior to reaching the issues raised in this case:

Our decision is guided by Crawford v Washington (541 US 36 [2004]) and Davis v Washington (126 S Ct 2266 [2006]). In those cases, the Supreme Court held that the Federal Confrontation Clause prohibits the "admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination" (Davis, 126 S Ct at 2273). Only statements that are testimonial make the absent declarant a "witness" within the meaning of the Confrontation Clause (see id.). In Davis, the Supreme Court explained that statements made in response to police inquiries are not testimonial when the circumstances "objectively indicat[e] that the [*3]primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency" (id.).

The Court concluded that the victim's statements did not violate the defendant's right to confront witnesses against him since the officer's primary purpose in questioning Millares was to address an ongoing emergency:

Even when the assailant has fled, the circumstances of the police officer's questioning of the victim may objectively indicate that the officer reasonably assumed an ongoing emergency and acted with the primary purpose of preventing further harm...

Officer Doyle arrived at the scene of a recent shooting and, as soon as he had summoned medical help, asked the victim what had happened. Given the speed and sequence of events, the officer could not have been certain that the assailant posed no further danger to Millares or to the onlookers. His brief solicitation of pedigree information and information about the attacker's identity was part of Officer Doyle's reasonable efforts to assess what had happened to cause Millares's injuries and whether there was any continuing danger to the others in the vicinity. In other words, the primary purpose of his inquiry was to find out the nature of the attack, "so that he could decide what, if any, action was necessary to prevent further harm" (Bradley, 8 NY3d at 127)...(and its) admission did not implicate defendant's right to confrontation...

When...a police officer justifiably believes that the assailant no longer poses a threat to the victim, the purpose of his or her interrogation of the victim may "evolve" from dealing with an ongoing emergency to establishing past events with a view to later criminal prosecution (id.). On this record, however, the initial purpose of Officer Doyle's inquiry did not change.

I think the Court was correct in its decision.  It makes no sense to allow defendants to benefit from the death of their victim.  In other words, if the victim lives, the statement is admissible since the victim is available to be cross-examined, but if the defendant succeeds in the attempt to kill the victim, then the statement identifying the defendant is out since the dead victim (obviously) can't testify. 

That is, unless Ouija boards are allowed in the courtroom.  Now, there's an interesting idea.

As I read this case, it occurred to me that the dying declaration exception would likely have been the strongest argument for admission of Millard's statement. I can only assume that the exception wasn't applicable since the victim died at a later point in time.  The decision doesn't indicate when he died, however, and simply states that he died.  I suppose the time of his death will have to remain a mystery for now, since I don't have time to track down the record on appeal.


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So basically they held that it was not testimonial. Hmm, I guess I could see that, but it's close.


Unlike Gideon, I don't see it. Hearsay elicited by a police officer's questioning is testimonial and inadmissible; moreover, there is a reason for that. What if, for example, this cop was lying?


The cop is available to cross. So, if s/he's lying, you've got a chance to try to show that.

And, I just don't see how it makes sense, from a policy perspective, to encourage an assailant to actually kill someone rather than simply harm them.

And, quite frankly, there's a reason for the dying declaration (in this case, excited utterance) exception--they're allowed because the statement is supposed to be inherently truthful. To circumvent that ratioale and not allow the identifying statement in because the victim inconveniently died and can no longer be crossed just seems wrong to me.

Granted, the issues I'm raising were never even reached by the court in this case, since the court determined that the statement wasn't testimonial, and I'm in essence arguing for an exception to Crawford in the cases where the victim dies and makes an ID prior to dying.

And, in regard to the Court's holding in this case, I still think the Court was correct. The cop was simply trying to ascertain what had happened at that point.
When a person has been shot and the assailant is possibly still nearby, the cop has to try to get the situation under control and protect the public from further assaults if at all possible.

Scott Greenfield

Crossing the hearsay reporter is hardly a substitute for crossing the declarant. The reporter (in this case the cop) just shrugs and says, "Hey, the victim said it was Bori."

But did the victim have an opportunity to observe? "I dunno," says the cop. "I'm just telling you what the victim said. If you want to know more, you have to ask the victim." But the victim is dead.

As I wrote over at Simple Justice, I agree with your view of public policy, that it should serve as an incentive for the benefit of society. But public policy can't trump the Constitution when it comes to protecting the rights of the individual. That's the tyranny of the majority.

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