Lawyers Manual - Unified Court System

214 Elizabeth Cronin
Davis does not establish a “bright line” rule for what constitutes testimonial
statements, but the Court has at least provided some guidance. The Court made
it clear that police have no real control over whether statements are testimonial
or not: “Their saying that an emergency exists cannot make it be so.” 49 It is the
use of the evidence, not its collection, which implicates the 6th Amendment.
The Court appeared to issue a warning to law enforcement not to try to make
statements and facts conform to the dictates of Crawford when they otherwise
would not. Prosecutors, not police, have the responsibility for avoiding
Crawford pitfalls. Obviously, when police arrive at the scene of a domestic
violence dispute, their first concern is the safety of the victim. However, it will
be important for them to be mindful in later reporting the statements what was
occurring at the time the statements were made. And, of course, prosecutors
must be aware of the need to obtain 911 tapes as soon as possible after they are
recorded to avoid the loss of the evidence.
One New York State appellate court that addressed 911 and exceptions to
the hearsay rule such as excited utterance and present sense impression since
Crawford seems to have anticipated at least some of the outcome in Davis. In
People v Coleman the First Department found a 911 call by an unidentified
person admissible in that the caller described an attack in progress and the
purpose of the call was to seek urgent police assistance. There was no structured
questioning and the information was fairly limited to describing the attack and
the assailant. 50
Evidence of Prior Acts of Violence
Domestic violence cases often involve prior “bad acts” committed by the
offender against the victim. Courts are very cautious in allowing evidence in the
prosecution’s direct case of prior charged and uncharged crimes because such
evidence is inherently prejudicial and may cause the jury to convict the abuser
because he “possesses a bad character or criminal propensity.” 51 If the evidence
is offered simply to discredit the defendant, it will not be admitted even if it has
probative value. 52
The New York Court of Appeals has carved out exceptions for what is known
as “Ventimiglia” or “Molineux” evidence to allow the introduction of evidence of
prior bad acts if the prosecution can demonstrate that the evidence is being offered
(1) to establish an element of the particular crime charged; (2) to prove motive,
identity, intent, to negate mistake or accident; (3) to assist in the narrative of the