Lawyers Manual - Unified Court System

Beyond Victims’ Testimony 211
New York courts scrupulously review the offer of proof. The Court of
Appeals, in People v Vasquez, acknowledged that a 911 call may be permitted
into evidence under the “present sense impression” exception to the hearsay
rule30 or “excited utterance” exception31 but the statement must be made
contemporaneously to the event. In the offer of proof, prosecutors should
stress the facts that would support a finding of reliability, particularly
contemporaneousness. Some facts might be the violent nature of the crime, the
extent of any injuries inflicted including pain, evidence of emotional trauma, 32
the time has passed since the occurrence, 33 what the speaker was doing, where
he or she was before the statement was made, and whether the statement was
made in response to questioning. 34 The time interval will depend entirely on the
particular situation and the seriousness of the crime. While five minutes can be
too long, two and one half hours may not be. 35
In 2004, the Supreme Court issued a decision throwing the well-settled
issue of the exceptions to the hearsay rule into question. In Crawford v
Washington, 36 the Court ruled that the Confrontation Clause under the 6th
Amendment bars the use of out-of-court “testimonial” statements made by an
unavailable witness unless the defendant had a prior opportunity to crossexamine
the declarant, even if the statements are deemed to be reliable under a
hearsay exception. The Court declined, however, to define “testimonial.” 37 In
Crawford, the trial court had admitted statements made by the defendant’s wife
to police implicating her husband in a crime. She was prevented from testifying
by the marital privilege. Examples that the Supreme Court had used in Crawford
that would clearly qualify as testimonial were statements made at preliminary
hearings, before a grand jury, at a former trial, or to police investigators. 38
Some courts, such as the US Court of Appeals for the Second Circuit,
reviewed Crawford and found that “testimonial” is, at the very least, knowing
responses made by the declarant during questioning either in an investigative or
courtroom setting, where the speaker should “reasonably expect” that the
responses may be used by law enforcement at some later time. 39 But the
question remained what statements, if any, outside of those specifically
mentioned in Crawford would be considered testimonial.
Without further guidance on what specifically constituted testimonial
statements, some courts found that when the statements are not clearly
testimonial statements made to law enforcement or under oath, traditional
hearsay rules apply. The Second Circuit ruled in US v Saget that statements
made by co-conspirators to a confidential informant should be admissible as
statements against penal interest. 40 At least one district court determined that
“where non-testimonial hearsay is at issue, the application of traditional state