“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. 813, 822 (2006), the United States Supreme Court held as follows: (A) Whether an Emergency Exists. In Davis v. The following factors are relevant to an analysis under the primary purpose test. 237, 247–248 (2015). The Supreme Judicial Court has remarked that statements contained in hospital records are not testimonial when the records “demonstrate, on their face, that were included for the purpose of medical treatment.” Commonwealth v. The United States Supreme Court has noted that under the primary purpose test, “tatements by very young children will rarely, if ever, implicate the Confrontation Clause.” Ohio v. “nterrogations that begin as nontestimonial can ‘evolve into testimonial’ interrogations” and are unlikely to shift back. The test is “objective” what matters is “the primary purpose that a reasonable person would have ascribed to the statement, taking into account all of the surrounding circumstances.” Id. The United States Supreme Court and the Supreme Judicial Court use the primary purpose test to determine whether a statement is testimonial or nontestimonial. (1) Testimonial versus nontestimonial the primary purpose test Second, if the evidence is hearsay, does the statement fall within an exception to the rule against hearsay? Third, if the hearsay falls within an exception, is the hearsay ‘testimonial’? Fourth, if the hearsay is testimonial, has the out-of-court declarant been previously subject to cross-examination and is the out-of-court declarant ‘unavailable’ as a matter of law, such that the testimonial hearsay does not offend the confrontation clause?”Ĭommonwealth v. The following conceptual approach may be helpful: First, is the out-of-court statement being offered to establish the truth of the words contained in the statement? In other words, is the out-of-court statement hearsay? If the out-of-court statement is offered for any purpose other than its truth, then it is not hearsay and the confrontation clause is not implicated. “When the Commonwealth offers an out-of-court statement in a criminal case, the evidentiary and potential confrontation clause issues can prove challenging. The Supreme Judicial Court has expressed the following analytical approach to determine whether out-of-court statements constitute admissible evidence: 12 is coextensive with the guarantees of the Sixth Amendment to the United States Constitution.” 215, 223 (2007), the Supreme Judicial Court held that “the protection provided by art. 926 (2006) (“constitutional provision of the confrontation clause trumps rules of evidence”). As a result, the Supreme Court held that “testimonial statements” of a witness for the government in a criminal case who is not present at trial and subject to cross-examination are not admissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. 36, 54 (2004), the United States Supreme Court explained that the Sixth Amendment expressed the common-law right of the defendant in a criminal case to confrontation, and that it was subject only to those exceptions that existed at the time of the amendment’s framing in 1791. Other than situations dealing with the defendant’s right to physically confront child witnesses, see Subsection (c) below, Article 12 provides no greater protections with respect to the admissibility of hearsay than does the confrontation clause. Even if an out-of-court statement would be admissible for its truth under the hearsay rule, it must still satisfy the requirements of the confrontation clause and Article 12. In considering the following sections, it is necessary to recognize the distinction between hearsay rules and the requirements of the confrontation clause of the Sixth Amendment to the Constitution of the United States and Article 12 of the Declaration of Rights. (a) Confrontation clause and hearsay in criminal cases
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