State v. Lopez: Florida's New "on-going emergency" rule.

AuthorOlson, Jonathan
PositionHearsay exception

When the Florida Supreme Court recently decided State v. Lopez, 974 So. 2d 340 (Fla. 2008), the court carved out a new rule to determine if an excited utterance is testimonial--the "on-going emergency rule."

This article reviews the excited utterance exception; reviews Crawford v. Washington, 541 U.S. 36 (2004), and its application in Lopez; reviews Lopez and argues why the new on-going emergency rule from the Florida Supreme Court creates too rigid a test for determining whether a statement is testimonial; and looks at how Lopez has been applied. Finally, it will examine the future ramifications of the rule for criminal defense attorneys and prosecutors.

The Excited Utterance Hearsay Exception

An excited utterance is any statement made by a claimant during the course of a startling event or condition while the claimant is under the stress of excitement caused by the startling event. This hearsay exception is codified by F.S. [section]90.803(2).

The rationale for the exception lies in the special reliability that is furnished when excitement suspends the declarant's powers of reflection and fabrication. This factor also serves to justify dispensing with any requirement that the declarant be unavailable because it suggests that testimony on the stand, given at a time when the powers of reflection and fabrication are operative, is no more (and perhaps less) reliable than the out-of-court statement. (1)

The U.S. Supreme Court, on more than one occasion, has ruled that, despite the Sixth Amendment, the excited utterance exception should remain an exception to the hearsay rule. (2) Prior to Crawford, when a witness was unavailable, a trial court could determine the reliability of the statement and allow it before the jury.

In Lopez, the Florida Supreme Court determined the statement made by the witness was an excited utterance; however, it held the statement was inadmissible due to the confrontation clause in accordance with the U.S. Supreme Court's decision in Crawford. (3)

Crawford v. Washington

Prosecutors in Washington state charged Mr. Crawford with assault and attempted murder on a man who allegedly tried to rape his wife. Mrs. Crawford was unable to testify due to Mr. Crawford invoking a marital privilege to prevent a spouse from testifying. However, Mrs. Crawford previously provided a recorded statement to officers which was offered by the state into evidence. Mr. Crawford objected to the statement, arguing that its admission would violate his Sixth Amendment right to confront witnesses against him. (4) The trial court, following Ohio v. Roberts, 448 U.S. 56 (1980), allowed the recorded statement finding 1) the witness was unavailable, and 2) the statement bore an adequate indicia of reliability. (5)

The U.S. Supreme Court held the statement violated the Sixth Amendment confrontation clause. Justice Scalia, writing for the Court stated: "Our cases have thus remained faithful to the Framers' understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." (6) "Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of 'reliability.'" (7)

With its holding in Crawford, the U.S. Supreme Court requires a trial court first determine whether the statement is testimonial, and, if so, not allow the statement unless 1) the witness is unavailable or unable to testify, and 2) the defendant had a previous opportunity to cross-examine the witness.

However, the U.S. Supreme Court did not determine the definition of a testimonial statement, stating "We leave for another day any effort to spell out a comprehensive definition of 'testimonial.'" (8)

In 2006, the U.S. Supreme Court attempted to create a definition of testimonial with its holding in Davis v. Washington, 547 U.S. 813 (2006). The Court decided two cases, Davis from Washington and Hammon v. Indiana, 546 U.S. 1088 (2006). Both cases dealt with out-of-court statements from domestic battery victims. In Davis, the statement was made to a 911 operator; in Hammon, the statement was made to an officer on scene. The Court held the statement in Davis was nontestimonial and held the statement in Hammon was testimonial and, therefore, should have been suppressed as violating the defendant's Sixth Amendment rights of confrontation.

State v. Lopez

Police officers in Tallahassee were dispatched on a complaint of an assault and kidnapping. Upon arrival, Officer Gaston met Hector Ruiz, the alleged victim, and asked what happened. Mr. Ruiz, upset and nervous, blurted out that Mr. Lopez had pointed a gun at him and forced...

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