911 Call, Officer Statement, and the Bartender
Defendant is tried for assaulting Vic outside a bar. Vic does not appear at trial; the prosecutor reports that Vic is 'too scared' to testify and has moved out of state. The prosecution offers (1) a recording of Vic's 911 call, made minutes after the attack, saying 'Marcus just hit me with a bottle'; (2) Officer Lee's testimony that when she arrived, Vic, bleeding from the head, said 'Marcus did this'; and (3) a bartender's testimony that Vic later that night, after two drinks, said 'I'm going to get Marcus back for this.' The defense objects to all three as hearsay and, as to (1) and (2), under the Confrontation Clause.
1. Is the 911 recording admissible? Address hearsay and confrontation.
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Likely admissible. Vic's statement is hearsay but falls within the excited-utterance and present-sense-impression exceptions: it was made minutes after the attack while Vic was under the stress of the event. Under Davis v. Washington, a 911 call made to enable police to meet an ongoing emergency is nontestimonial. The primary purpose was to get help, not to create evidence for trial. The Confrontation Clause therefore does not bar it, even though Vic is unavailable. The statement identifies Marcus, but the nontestimonial nature and the excited-utterance exception cover that identification. The court should still weigh relevance and unfair prejudice, but admission is likely.
2. Is Officer Lee's testimony about Vic's statement admissible?
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This is the close call. The statement may qualify as an excited utterance because Vic was bleeding and the officer arrived soon after. But the Confrontation Clause is separate: if Vic's statement was testimonial, it is barred unless Vic is unavailable and defendant had a prior opportunity to cross-examine. Statements to police are testimonial when the primary purpose is to establish past events for prosecution. If Officer Lee asked 'what happened' after the scene was secure, it is testimonial. If she asked to assess an ongoing emergency, it is not. Fear that makes Vic unavailable does not equal forfeiture by wrongdoing; the state must show defendant procured the absence. On these facts, exclusion is likely unless the emergency purpose is established.
3. Is the bartender's statement admissible, and for what purpose?
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It is not admissible for the truth of the matter asserted-that Vic would retaliate-unless an exception applies. It may be admissible as a then-existing state of mind (intent) under Rule 803(3), but only if Vic's intent is relevant. The defense might offer it to show Vic's bias or motive to fabricate, which is a nonhearsay purpose. The prosecution cannot offer it to prove Marcus was the attacker. After two drinks, an excited-utterance theory is weak. The court should give a limiting instruction and may exclude it under Rule 403 if its probative value is substantially outweighed by confusion or unfair prejudice.