Non-testimonial statement - admissible only if hearsay exception is satisfied Davis v. Washington & Hammon v. Indiana (2006) Facts: Davis - Statements at issue were uttered by a crime victim in a 911 call. The victim was unavailable at trial, so the court allowed the state to play the tape recording. Hammon - Victim made the statements at the crime scene by filling in the blanks and signing a printed affidavit form. Victim did not appear at trial and the court allowed the investigating officer to recount what the victim said and to authenticate the affidavit for admission into evidence. Holding: Davis - Affirmed. The circumstances of the 911 call indicate its primary purpose was to enable police assistance to meet an ongoing emergency. The caller was not acting as a witness she was not testifying. Hammon - Reversed. The statements here were not much different than they were in Crawford. It is clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct. There was no emergency in progress. Shorter v. State (Miss. App. 2009) Facts: Shorter discovered his wife sleeping with another man. Shorter shot and killed him. Wife immediately called 911. Shorter filed a motion in limine to exclude his wife’s statements made during the 911 call, arguing that (1) the admission of statements would violate the Spousal Competency Rule and (2) the statements were testimonial in nature and their admission violated the Confrontation Clause. Cases Considered by Court: Dowback v. State Police met clandestinely with wife and enlisted her as an informant against her husband. Wife did not testify, but husband said that all evidence obtained from his wife was inadmissible Shorter court rejected it because here, the wife’s 911 recording was played for the jury Ford v. State Admission of a spouse’s out-of-court statements may violate spousal-competency. The court held that admission of the testimony about the wife’s out-of-court statements was reversible error based upon spousal-competency principles.
Testimony of both the principal identifying witness and observer witnesses may be offered by the prosecution as part of its case-in-chief provided the requirements of the rules are met Smith v. State (Miss. 2009) Facts: Davis was shot by Smith. Right after the shooting, Davis was adamant with police that Smith was the shooter. However, at trial, Davis said that the shots came from across the street and that he never saw Smith. The court allowed, over defense’s objection, Davis’s prior inconsistent statements and a Jury convicted Smith of aggravated assault. Rule: Statements of identification is admissible for impeachment or substantive evidence. Testimony of both the principal identifying witness and observer witnesses may be offered by the prosecution as part of its case in chief. Holding: Court rejected the trial court’s ruling that the witness was unavailable because he couldn’t remember. However, instead of reversing and remanding, the court found that his testimony was admissible pursuant to MRE 801(d)(1)(C) Notes: Confrontation rights were not abridged because Davis was available for cross-examination MRE 801(d)(2) - Admission by Party-Opponent Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Who is a party-opponent? Civil cases - plaintiffs vs. defendants Criminal cases - state vs. defendants Victim is not a party, merely a witness What is an admission?
Issue 3: Did the trial court violate Mitchell’s by admitting the transcript? Holding 3: No. The use of Bootsie’s testimony from the first trial is consistent with the Confrontation Clause Statement Under Belief of Impending Death Foundation The foundation testimony offered by someone who was present and heard the dying person’s statements must establish: The dying person indicated that he know, or the circumstances were such that he should have realized that he was dying and The statement related to the cause or circumstances of his death Once the foundation is established, the witness may then repeat the statement (dying declaration) Ellis v. State (Miss. 1990) Facts: Lester Lee Ellis shot and killed his 76 year old great uncle, Alex Edgerston. Officer Billy Burns testified that Edgerston named Ellis as his assailant and explained that Ellis shot him during an attempted robbery. Trial court allowed the testimony under Rule 803(2) - excited utterance and Rule 804(b)(2) - dying declaration. Ellis was convicted of murder and appeals, urging that the trial court erred by admitting Edgerston’s dying declaration. Holding: Affirmed. Although there was nothing the record which directly established Edgerston’s consciousness of his impending death, the circumstances are overwhelming that he should have regarded his would as mortal. Court noted the doctor’s testimony of the bullet wound to Edgerston’s heart. A normal person would have died in a minute or two, but Edgerston lived 5 to 6 more hours because he had a great deal of scar tissue around his heart. Notes: Rule 804(b)(2) is only admissible in a HOMICIDE prosecution, OR in a CIVIL ACTION Statement Against Interest Foundation Testimony The declarant had personal knowledge of the subject matter of the statement The declarant knew, or should have known, that the statement was contrary to his proprietary or pecuniary interest, or tended to subject him to civil or criminal liability A reasonable person in the declarant’s position would not have made the statement unless believing it to be true The declarant is unavailable at trial Hooker v. State (Miss. 1987) - Statement against monetary interest