Hearsay and Confrontation in a Domestic-Assault Trial Without the Victim
Marcus Hale is tried in Fayette Circuit Court for assaulting his girlfriend, Tessa. Tessa does not appear at trial; the Commonwealth has not sought a contempt warrant. The prosecution offers four items. (1) A 911 recording: Tessa's neighbor yells, 'Marcus, stop!', and says, 'He's hitting her-send someone.' Tessa is heard screaming in the background. (2) An officer's body-camera video, recorded six minutes later, in which Tessa, crying and holding her jaw, tells the officer, 'Marcus punched me.' (3) An emergency-room nurse's testimony that Tessa said, 'My boyfriend hit me,' plus the hospital record containing the same statement. (4) Tessa's signed, notarized written statement to a detective two days later, saying Marcus punched her. Marcus objects to all four on hearsay and Confrontation Clause grounds.
1. Is the 911 recording admissible?
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Likely yes. The neighbor's statements are excited utterances under KRE 803(2): a startling event was in progress, the neighbor was under its stress, and the statements relate to it. 'He's hitting her' is also a present-sense impression and a lay opinion rationally based on perception. Tessa's screams and any background statement are likewise excited utterances. Under Crawford, the call is nontestimonial because it was made to summon police during an ongoing emergency, not to create evidence for prosecution. The Confrontation Clause therefore does not bar it, and the hearsay exceptions apply even though Tessa is absent.
2. Are the body-camera statement and the nurse's testimony admissible?
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Probably yes, subject to foundation. Tessa's body-camera statement is an excited utterance: she was crying, injured, and speaking minutes after the assault. It is nontestimonial if the officer's questions were aimed at resolving the ongoing emergency and determining what happened, rather than formalizing a case; Davis v. Washington draws that line. The nurse's testimony falls under KRE 803(4) because Tessa made the statement for medical diagnosis or treatment. Identity of the assailant is admissible when relevant to treatment, such as assessing safety or the mechanism of injury. The hospital record may come in under KRE 803(6) with a custodian's foundation, but the embedded statement still needs 803(4); it is not testimonial because it was made for treatment, not prosecution.
3. Is Tessa's signed, notarized statement to the detective admissible?
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No, not as substantive evidence. A signed, notarized statement to a detective two days after the event is testimonial: its primary purpose was to establish past facts for prosecution. Because Tessa is unavailable and Marcus had no prior opportunity to cross-examine her, Crawford bars it unless the prosecution proves forfeiture by wrongdoing-that Marcus procured her absence with the intent to prevent testimony. Mere absence, without evidence of procurement, is insufficient. The statement also does not fit a hearsay exception merely because it is notarized. It could be used only for impeachment if Tessa testifies inconsistently, which she has not done.