The Florida Supreme Court recently made a new rule for determining if an excited utterance is testimonial in the case of State v. Lopez. This article reviews what an excited utterance is, the Supreme Court case Crawford v. Washington, and the new rule from the Florida Supreme Court. It argues that the new rule is too rigid and looks at how it has been used. Finally, it examines what the rule means for defense attorneys and prosecutors in the future. Excited utterances are statements made during a startling event or condition while the person is under stress, and they are considered reliable in court. The U.S. Supreme Court has said that, despite the Sixth Amendment, excited utterances should still be allowed as evidence. Before the ruling in Crawford, if a witness was unavailable, a court could decide if the statement was reliable and show it to the jury. In the case of Crawford v. Washington, Mr. Crawford was accused of assault and attempted murder for trying to protect his wife from a man who allegedly tried to rape her. Mrs. Crawford couldn’t testify in court, so the state tried to use a recorded statement she had given to the police. Mr. Crawford said this violated his right to confront the witnesses against him. The U.S. Supreme Court agreed, saying that if a statement is testimonial (like a formal statement to the police), it can’t be used in court unless the witness is unavailable and the defendant had a chance to cross-examine them. The U.S. Supreme Court has not yet given a complete definition of what counts as a “testimonial” statement. In a 2006 case, they decided that a statement made to a 911 operator was not testimonial, but a statement made to a police officer at the scene was testimonial and should not have been used as evidence. In a specific case in Tallahassee, a man, Mr. Lopez, was charged with having a gun as a convicted felon. A person who said Mr. Lopez threatened him with the gun couldn’t be found for trial. The defense tried to exclude the person’s statements, but the court said they were allowed because they were made in the heat of the moment. Mr. Lopez was found guilty based on the person’s statements. The Florida Supreme Court said that the statements made by Mr. Lopez violated his right to cross-examine the witness. They relied on a decision called Davis to make their decision. The U.S. Supreme Court had actually said that they weren’t making a strict rule about when a statement is testimonial, but the Florida Supreme Court ignored that and made their own bright-line rule about an on-going emergency. The U.S. Supreme Court used a four-part test to decide if a statement made to police is testimonial or not. They looked at things like if the person was speaking about past or present events, if they were in an emergency, the type of questions asked, and how formal the questions were. This test helped them decide if a statement could be used as evidence in court. Justice Thomas criticized the test, but Justice Scalia said it’s not a perfect system and courts can use other factors too. In the Lopez case, if we apply the four prongs from the Davis case, the outcome does change. The victim, Ruiz, explained past events to Officer Gaston and gave a fact in the present time to Officer Arias. There was no ongoing emergency, and the questions asked were to determine past events and were not very formal. So, the outcome of the case would change based on the application of these prongs. The Florida Supreme Court could have decided that the first statement to one officer was testimonial, while the second statement to a different officer was not testimonial. Since then, two cases have come up with similar issues. In one case, the court said a boy’s statement about his father throwing a dog off a balcony was testimonial, so it couldn’t be used as evidence. In another case, an elderly woman’s statements were allowed as evidence because they were considered to be excited utterances and not testimonial. The court is looking at a rule about when statements made during an emergency can be used in court. It’s a big deal because it affects how criminal cases are handled. Lawyers on both sides will have to be on their toes and ready to argue their points. Prosecutors will need to make sure witnesses stay available, and defense lawyers will be looking for a clear rule to follow. The Davis decision doesn’t settle the debate about testimonial vs. non-testimonial evidence. It’s unclear when a new decision will clarify the terms. The Lopez decision might lead to strange and unexpected rulings until it’s clarified. Some legal experts think that statements made in the heat of the moment are more reliable than later testimonies. The Supreme Court ruled that certain exceptions to the rule against hearsay are firmly established in law, dating back centuries. The court also overturned a previous decision in a case involving a man charged with armed kidnapping and assault. The court ruled that statements made to family or friends are not likely to be considered testimonial. This column is from the Criminal Law Section. Their goal is to teach lawyers about their responsibility to serve the public, improve the justice system, and advance the study of law.
Source: https://www.floridabar.org/the-florida-bar-journal/state-v-lopez-floridas-new-on-going-emergency-rule/
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