The Admissibility of Testimonial Hearsay

• Publication year: 2004
• Pages: 89
• Citation: Vol. 33 No. 7 Pg. 89

33 Colo.Law. 89 Colorado Lawyer 2004.

2004, July, Pg. 89. The Admissibility of Testimonial Hearsay

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89

Vol. 33, No. 7, Pg. 89

The Colorado Lawyer
July 2004
Vol. 33, No. 7 [Page 89]

Specialty Law Columns
Evidence
The Admissibility of "Testimonial" Hearsay
by Elizabeth Harris

This month's article was written by Elizabeth Harris Denver, an attorney with Jacobs Chase Frick Kleinkopf &amp Kelley, LLC - (303) 685-4800, eharris@jcfkk.com

Those interested in submitting an article for publication in the Evidence column should contact the editor, Lawrence M. Zavadil, at (303) 389-4644 or lzavadil@jcfkk.com.

Q: May statements of a non-testifying witness be admitted against a defendant in a criminal case?

A: Consistent with the Confrontation Clause of the Sixth Amendment, the statements are inadmissible if they are "testimonial" in nature.

Assumed Facts

Vanessa Smith was attacked in her townhouse by her neighbor, John Jones. Immediately following the assault, Smith dialed 911 and spoke with a police dispatcher. Smith identified her attacker as her neighbor.

The dispatcher sent two male police officers to Smith's townhouse, but Smith declined to speak to them. The police officers summoned a female victims' advocate from the district attorney's office, who arrived approximately one hour after the incident. Smith, still visibly distraught, recounted the details of the assault to the victims' advocate. Although she did not know her attacker's name, Smith again identified the man as her neighbor and provided a general physical description.

The police arrested Jones and charged him with assault. Before trial, Smith moved from her home and left no forwarding address. At Jones's trial, the prosecutor moved to introduce Smith's statements to the 911 dispatcher and victims' advocate as "excited utterances" under C.R.E. 803(2). Jones objected, claiming that admission of the statements would violate his rights under the Confrontation Clause of the Sixth Amendment ("Confrontation Clause"). Are Smith's statements to either the 911 dispatcher or victims' advocate likely to be admitted?

Discussion

For nearly twenty-five years, the question of whether an unavailable witness's prior statements could be used against a criminal defendant at trial was governed by Ohio v Roberts.1 Under Roberts, out-of-court statements were admissible if they: (1) fell...