Unavailable Victim, 911 Call, and Medical Record
Damon is charged with assaulting his roommate, Alex, who suffered a fractured jaw. Alex has moved out of state and cannot be located for trial. The State offers four items. (1) A 911 call made 30 seconds after the attack in which Alex says, 'Damon hit me with a bat!' (2) A signed written statement Alex gave a police detective two hours later at the station. (3) Testimony from Alex's coworker that Alex told her two days before the attack, 'If I come up missing, check my roommate.' (4) A hospital record entry by a nurse: 'Patient states roommate struck him.' The nurse made the entry for treatment. Damon objects based on hearsay and the Confrontation Clause.
1. Are items (1) and (2) admissible? Analyze hearsay and confrontation separately.
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Item (1), the 911 call, is likely admissible. Alex's statement was made 30 seconds after a startling attack while he was still under the stress of the event, so it falls within the excited-utterance exception. For Confrontation Clause purposes, a 911 call made during an ongoing emergency is generally nontestimonial under the primary-purpose test, because its purpose is to obtain emergency assistance rather than to create evidence for trial. Item (2), the signed station statement two hours later, is different. It is hearsay, and by then the excitement had dissipated, so the excited-utterance exception does not apply. It is also testimonial because it was a formal police interview intended to establish past events for prosecution. Because Alex is unavailable and Damon had no prior opportunity to cross-examine, the Confrontation Clause bars the statement unless forfeiture by wrongdoing applies, which the facts do not show. Item (2) should be excluded.
2. Is item (3), the coworker's testimony, admissible?
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It is probably inadmissible if offered to prove that Damon attacked Alex. The statement 'If I come up missing, check my roommate' is an out-of-court statement being used for its truth -- namely, that Damon was a danger or that he harmed Alex. It does not qualify as a present sense impression, excited utterance, or business record. The state-of-mind exception under Rule 803(3) can admit a statement of the declarant's then-existing fear, but it cannot be used to prove the conduct of another person or the fact that the feared event occurred. If Alex's fear were independently relevant -- for example, to explain why he delayed reporting or why he stayed away -- the court might admit it for that limited purpose with a limiting instruction. On these facts, the coworker's testimony is not admissible as substantive evidence that Damon assaulted Alex. Confrontation Clause concerns are not triggered because the statement was not testimonial, but hearsay still bars it.
3. Is item (4), the hospital record entry, admissible?
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It is likely admissible if a proper foundation is laid. The entry can qualify as a business record if the hospital made it in the regular course of business and the nurse recorded it contemporaneously for treatment. The statement -- 'Patient states roommate struck him' -- may also fall within the exception for statements made for medical diagnosis or treatment. Courts generally admit statements about the cause of an injury when the cause is pertinent to diagnosis or treatment, as it would be for a fractured jaw. The statement is not testimonial because the nurse's primary purpose was treatment, not creating evidence for prosecution. The court should redact any irrelevant or prejudicial portions and ensure the record does not contain opinions beyond the nurse's role. Assuming the foundation is established, the hospital record is admissible.