In three recent decisions, the New Jersey Supreme Court considered and applied the parameters of the United States Supreme Court case of Crawford v. Washington, 541 U.S. 36 (2004) to similar, but distinct questions of evidence admissibility. In Crawford, the Court held that under the Confrontation Clause of the Sixth Amendment, “[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross examine.” Id. at 59. The three New Jersey Supreme Court opinions, State v. Ryan Buda (A-45/5-07), State in the Interest of J.A. (A-2-07), and State v. William Sweet (A-1-07)/State v. James Dorman (A-38-07), required the court to consider whether certain types of evidence ran afoul of the Confrontation Clause and the holding in Crawford.
In State v. Ryan Buda, the court was asked to evaluate whether two separate hearsay statements made by a severely abused child were “testimonial” under Crawford and therefore inadmissible without the child testifying and being subjected to cross examination. The first statement made by the child – “Daddy beat me” – was made to the child’s mother. The second statement – “Dad says nobody beat me. I fell when I was sleeping in my room.” – was made to a representative of the Division of Youth and Family Services (DYFS) who was called in to speak to the child after he had been hospitalized for injuries. Buda was charged with three counts of second degree endangering the welfare of a child and one count of third degree aggravated assault, and the child did not testify at trial. The trial court held that both statements were excited utterances and admissible. On appeal, the appellate division affirmed that the statements were excited utterances, and further found that the statement to the child’s mother was admissible but the statement to the DYFS worker was testimonial and inadmissible because the child did not testify at Buda’s trial and was not subject to cross examination.
The New Jersey Supreme Court affirmed in part and reversed in part, holding that the trial court was correct in admitting the statements into evidence as “excited utterances” under N.J.R.E. 803(c)(2) [FRE 803(2)] and, further, that the statements were not testimonial and did not violate the Confrontation Clause. All parties agreed that the child’s statements were hearsay, and the court easily held that the statement to the mother was an excited utterance. The statement to the DYFS worker presented a “closer question,” but was still an excited utterance, considering the context in which it was delivered and the time and circumstances that elapsed between the child’s abuse that day and when the statement was made. Moving to the Crawford analysis, the court concluded that the child’s statement to his mother was nontestimonial because it did not “bear the indicia of a ‘formal statement to government officers’” and instead was more like “ ‘a casual remark to an acquaintance.’” Buda at p. 32 (citing Crawford, 541 U.S. at 51). It then considered whether the child’s statement to the DYFS worker was nontestimonial. The court rejected the conclusion that the DYFS worker stood in the shoes of a polices officer and therefore, the statement was the result of a policy inquiry. Instead, the court believed that the DYFS worker, in questioning the child, was confronted with a battered child who needed protection from the adults charged with his care, and the worker took the necessary steps to attain that protection. Her question to the child was designed to elicit information that would help her determine how to remove the threat of continued bodily harm, and possibly even death, to the child. The court noted that the primarily obligation of a DYFS worker is “to protect prospectively a child in need” and “not to collect evidence of past events to secure the prosecution of an offender.” Buda at p. 34. The court drew an analogy to Davis v. Washington, 547 U.S. 813 (2006), where the United States Supreme Court held that a statement during a 911 call was nontestimonial, even though made in the course of a police interrogation, because the primary purpose was to enable police to meet an ongoing emergency. Accordingly, the New Jersey Supreme Court concluded that both of the child’s statements were excited utterances and nontestimonial, and therefore admissible.
In State in the Interest of J.A. (A-2-70), the New Jersey Supreme Court tackled the issue of whether statements made by a non-testifying witness, to a police officer, and describing a robbery that had been committed ten minutes earlier and the witness’ subsequent pursuit of the robbers, were admissible. In this case, two juveniles robbed a woman and ran off with her purse. A police officer responded to the scene and eventually found a witness to the robbery about a block and a half away from where the robbery took place. At trial, the officer was allowed to testify about the witness’ account of the robbery as a present sense impression, and therefore an exception to the hearsay rule under N.J.R.E. 803(c)(1) [FRE803(1)]. The witness did not testify. Likely due in large part to the statements made by the non-testifying witness, the family court adjudicated J.A. as delinquent and the appellate division affirmed that adjudication. The appellate division concluded that the witness’ statements were admissible under the present sense impression and the excited utterance exceptions to the hearsay rule, and, further, that the admission of those statements did not violate the Confrontation Clause. The appellate division concluded that the witness’ statements were nontestimonial because “an ‘objective witness’ would not have reasonably believed they would be available for use in a later trial.” The Supreme Court then held that the witness’ hearsay statements were a narrative of past events, and that neither the declarant, nor the victim were in imminent danger when the statements were made, and therefore ineligible for an exception to the hearsay rule. The court further found that the statements were testimonial and the admission of such statements violated the defendant’s Sixth Amendment rights because the witness was not produced at trial and subject to cross examination.
In reaching its conclusion, the Supreme Court held that the witness’ statements conveying the details of a robbery that had occurred ten minutes earlier did not describe the crime “immediately after” it occurred, and therefore, were not admissible under the present sense exception. The Supreme Court then clarified that a statement which does not qualify for admission under a present sense exception can be admissible as an excited utterance, but the facts elicited on the record in this case did not support such a conclusion. Finally, the court moved on to the Confrontation Clause question, noting the “seismic shift” in modern jurisprudence on the subject created by Crawford. The court explained that the non-testifying witness in this case described “what had happened” to the officer, and that at that time, there was no ongoing emergency or immediate danger. The Supreme Court then concluded that a narrative delivered after a crime has been completed and after the conclusion of any imminent danger to the declarant or someone else, is testimonial. J.A. at p. 32. The court also held that the witness’ statements to the police officer met the formality and solemnity requirements of Crawford and that the out-of-court statement was the equivalent of in-court testimony, without being subject to cross examination. Id. at 34. All of these factors led to the conclusion (with little difficulty) that the witness’ statements to the police officer were testimonial and the admission of that testimony violated the defendant’s Sixth Amendment right to confrontation. Id. at 35.
Finally, in State v. William Sweet (A-1-07) and State v. James Dorman (A-33-07), the court addressed whether the introduction into evidence of foundational documents concerning the operational status of a Breathalyzer machine used to attain two separate driving while intoxicated convictions violated the defendants’ right to confront a witness against them.
At trial, defendant William Sweet (charged with driving while intoxicated and assorted other traffic violations) challenged the admissibility of two “Certificates of Analysis – Breath Alcohol Reagent Ampoule” that were prepared by a laboratory and concerned certain reagent ampoules used in the breathalyzer on the basis that the certificates were inadmissible hearsay. Likewise, defendant James Dorman, also charged with driving while intoxicated, challenged the admissibility of two “Breath Testing Instrument Inspection Certificates,” claiming that the documents were testimonial and inadmissible under the Confrontation Clause. All documents were admitted at the municipal court level.
On appeal, the New Jersey Supreme Court held that the ampoule testing certificates in Sweet and the inspection certificates in Dorman were hearsay statements. However, those “statements” were admissible under the business records exception to the hearsay rule, codified at N.J.R.E. 803(c)(6) [FRE 803(6)]. In order to qualify under this exception to the hearsay rule, the court explained that the proponent must satisfy three conditions: (1) the writing is made in the regular course of business; (2) the writing must be prepared within a short time of the act, condition, or event described; and (3) the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence. State v. Sweet, State v. Dorman, at p. 17. The court concluded that all of the certificates that were the subject of these appeals qualified as business records.
Further, the court held that the records were nontestimonial under Crawford and, accordingly, admissible under the Confrontation Clause. Regarding the Crawford analysis, the court noted that, under the jurisprudence of that case, business records are considered, by their nature, to be nontestimonial, and consequently, usually not implicating the Confrontation Clause. The court agreed that these certificates were nontestimonial because neither of them “related to or reported a past fact”, and neither of them was “generated or prepared in order to establish any fact” that was an element of the offense. Id. at p. 21. The court unanimously affirmed the convictions of both Sweet and Dorfman.
