Posted by: William Hanlon
August 28, 2006

A 911 call that is admitted under the excited utterance or spontaneous statement exception under 90.803(1)and (2) is not "testimonial" hearsay and is admissable as evidence. Bartee v. State, 31 F.L.W. D815 (5th DCA 3/17/2006). The Fifth district relied on the analysis set out in Crawford v. Washington by the United States Supreme Court. By contrast the 5th DCA felt the statements made to law enforcement by the victim were testimonial in nature, and not admissable. The Court felt that the statements were made after the defendant had left the scene, and the statements were in direct response to police questioning. In addition, the victim had every reason to believe that her statements could be used to prosecute the defendant.

Once the Court determined that the statements to police were testimonial in nature the court then addressed the second part of the analysis. Neither side was ever able to produce the victim as a witness, and she was never subject to cross examination. As a result, the statements made by the victim to law enforcement should not have been admitted. While Mr. Bartee's case was reversed on appeal, the reversal only pertained to the burglary charge and the convictions as to false imprisonment and battery were upheld.

911 Call Not "Testimonial" hearsay

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