Excited Utterances, "Testimonial" Statements, and the Confrontation Clause

Publication Date: December 2005

Publisher: Library of Congress. Congressional Research Service

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Research Area: Justice

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Abstract:

The United States Supreme Court will hear oral argument this term in appeals from two state supreme court cases, Hammon v. Indiana and Davis v. Washington, concerning the admissibility of "excited utterance" statements made by non-testifying witnesses at criminal trials. In the landmark Crawford v. Washington case in 2004, the Court held that the Sixth Amendment's Confrontation Clause forbids hearsay "testimonial" evidence from being introduced against the accused unless the witness is unavailable to testify and the defendant has had a prior opportunity to crossexamine the witness. However, the Crawford Court declined to provide a comprehensive definition of "testimonial," leaving such task "for another day."

This omission has caused state and federal courts to struggle over which out-ofcourt statements are "testimonial" for purposes of triggering the Crawford requirements. The confusion has arisen most often in cases involving out-of-court statements made by non-testifying witnesses to investigating police officers at a crime scene or during 911 emergency calls. These "excited utterance" statements have traditionally been admitted into evidence under an exception to the hearsay exclusionary rules followed by courts. However, since Crawford, the lower courts have disagreed over whether spontaneous utterances are considered "testimonial" statements subject to the Sixth Amendment's cross-examination mandate. These two cases offer the Court an opportunity to resolve this uncertainty by more clearly explaining what constitutes "testimonial" statements. The outcome has the potential to impact significantly the strategy and method of prosecuting criminal cases, particularly the use of out-of-court accusations against defendants in domestic violence and gang-related crimes.

This report will be updated after the Supreme Court issues its decision.