Excited Utterance Not Testimonial under Crawford – State int J.A.

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court ruled that testimonial hearsay may not be admitted against a defendant at trial unless the declarant is unavailable and the defendant has had a prior opportunity for cross examination. The so-called Crawford issue has only been discussed once before in any detail in a New Jersey published decision. See State v. Godshalk, 381 N.J. Super. 326 (Law Div. 2005) – (Business Records not testimonial with the meaning of Crawford.) Today’s Appellate Division decision in State in the Interest of J.A. presents the first time that a New Jersey appellate court has discussed Crawford in any meaningful detail.

In the J.A. case, the State introduced hearsay testimony in the form of what constituted either an excited utterance or a present sense impression. The defendant objected that the admission of this hearsay evidence violated the defendant’s confrontation rights under Crawford. Although the hearsay declarant was unavailable, he had not been subject to prior cross examination. Moreover, the defendant maintained that the hearsay statement was clearly testimonial in that it was given for the purpose of use by the prosecution at a criminal trial.

The Appellate Division rejected this argument and ruled that in determining whether a hearsay statement is testimonial in the Crawford sense, the court must look to the type of statement, the intent of the declarant, and the purpose of the official procedure used to elicit the statement. These factors must be considered under a totality of the circumstances analysis with the goal of deciding whether an objective witness would believe that his statements would later be used by the prosecution at a criminal trial.

In the instant case, the Appellate Division ruled that the brief, spontaneous statement given by the hearsay declarant to the police did not have the indicia of a formal, structured statement to the police.Raher, it was merely the report of a crime to help law enforcement officers. Under the totality of the circumstances, an objective witness would not have believed that the statement he gave would have been used by the prosecution at trial. Despite the importance of this decision, it should be read and regarded with considerable caution at this point. The Appellate Division relied in large measure on two out-of-state supreme court cases: Washington v. Davis, 111 P. 3d 844 (Wash.2005) and Hammon v. State, 829 N.E. 2d 444 (Ind. 2005). Each of these cases was appealed to the United States Supreme Court and argued as companion matters on March 20th of this year under the captions Davis v. Washington and Hammon v. Indiana. The Justices will decide these matters at some point prior to the end of the current year’s term on July 1st. Accordingly, the basis for the Appellate Division’s holding may be subject to change within the next 60 days by virtue of United State Supreme Court action.

Download a copy of State in the interest of J.A.

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