The 911 Call, the Empty Witness Chair, and the Forfeiture Question
The state charges Andre with felony domestic assault. The alleged victim, Keisha, called 911 from a locked bathroom. On the recording, audibly crying and out of breath, she tells the dispatcher 'Andre just kicked the door in and hit me; he's still in the apartment.' The dispatcher asks, 'Is he the man you live with?' and she says yes. Officers arrive four minutes later; Andre is gone. Keisha later tells the prosecutor she will not testify and has moved out of state. The state subpoenas her; she does not appear, and the court has neither held her in contempt nor ruled on any forfeiture motion. The state offers (1) the 911 recording, (2) Keisha's grand jury testimony identifying Andre as her assailant, and (3) a hospital record in which the treating nurse wrote 'patient states boyfriend struck her.' The court has found Keisha unavailable.
1. Is the 911 recording admissible over a hearsay and Confrontation Clause objection?
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The recording clears the hearsay hurdle twice over. Keisha's statements describe an event while she was still under its stress, satisfying the excited-utterance exception, and they describe what she was perceiving as it happened, satisfying the present-sense-impression exception.
The Confrontation Clause question is closer and controls the outcome. Under Davis v. Washington, statements made in a 911 call while an emergency is ongoing are nontestimonial because their primary purpose is to obtain help, not to build a case. 'He's still in the apartment' establishes that the emergency had not ended when she spoke, so the assault description is nontestimonial. The follow-up question about whether Andre lives with her may edge toward investigation if the emergency had subsided by then, but it was asked during the same call, to resolve the ongoing danger, and is most likely nontestimonial as well.
If any portion were deemed testimonial, the state would need forfeiture by wrongdoing under Giles v. California - proof that Andre engaged in conduct designed to keep Keisha from testifying. Her bare refusal to appear does not establish that, and the state has not yet sought such a ruling. On this record the call comes in.
2. Is Keisha's grand jury testimony identifying Andre admissible?
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Almost certainly not. Grand jury testimony is hearsay, and the only plausible gateway is the former-testimony exception, which requires that the declarant be unavailable and that the party against whom the statement is offered have had an opportunity and a similar motive to develop the testimony by cross-examination. Keisha is unavailable in the relevant sense - she has refused to appear despite a subpoena - but Andre had no opportunity to cross-examine her before the grand jury, and the prosecutor's motive in that proceeding was to obtain an indictment, not to establish guilt beyond a reasonable doubt at trial.
The Confrontation Clause supplies an independent bar. Grand jury testimony is testimonial: its primary purpose is to establish facts for use in a prosecution. Under Crawford, testimonial statements are admissible only if the defendant had a prior opportunity to cross-examine, which Andre did not. Nor can the state use the testimony for impeachment, because Keisha never takes the stand. The statement stays out unless Andre himself opens the door by introducing it.
3. Is the hospital record notation admissible?
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Likely yes, though the trial court has discretion over the precise wording. The record itself qualifies as a business record if it was kept in the ordinary course of the hospital's regularly conducted activity, but a business record can contain hearsay within hearsay, so each layer must have an exception.
The inner statement - 'patient states boyfriend struck her' - falls within the exception for statements made for medical diagnosis or treatment. Courts admit statements describing the cause of an injury when they are reasonably pertinent to treatment. Identification of the person who caused the injury is pertinent in a domestic-violence context because treatment and safety planning depend on knowing whether the patient will return to the same household, and the nurse's question reflects that purpose.
The Confrontation Clause poses no obstacle. Statements made to medical personnel for treatment rather than to law enforcement for prosecution are nontestimonial under the reasoning of Melendez-Diaz. The defense can still argue that the 'boyfriend' reference was not necessary to treatment and should be redacted, but the record is admissible on these facts.