Introduction

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For a variety of reasons, alleged victims of domestic violence may not testify at trial as the prosecution expects. For a discussion of this issue, see Chapter 10, Evidence in Domestic Violence Cases, New Mexico Domestic Violence Benchbook. Prosecutors may attempt to prove their case nonetheless by introducing other evidence of the defendant’s assault on the victim. This evidence often takes the form of prior statements, either written or oral, made by the victim, responding police officers, or other witnesses. These typically are called “hearsay” statements.

The general rule is that hearsay is not admissible as evidence. But this rule has numerous exceptions, allowing hearsay statements to be admitted if they were made under circumstances that ensure their reliability. In addition, not all out-of-court statements are even defined as hearsay. The hearsay rules are found in Rules 11-801 through 11-806 of the New Mexico Rules of Evidence. Note that the rules use the term "declarant" to mean the person who makes a statement that later is offered as evidence in a case.

The following chart provides a concise overview of the evidentiary rules that permit or bar introduction of hearsay statements into evidence. Of course, this is only a general guide. Circumstances vary greatly from case to case. As a result, some of these rules may not apply, or other rules than those mentioned here may be applicable. Judges should carefully consider the arguments of counsel, the rules of evidence, and the caselaw applicable to each specific situation before ruling.

This chart addresses some of the rules that govern admission of hearsay evidence in three situations common to domestic violence cases. By selecting a situation, you will see the controlling evidentiary rules that may permit or prevent admission of the evidence. You then may select a rule to find out what foundation needs to be laid to introduce hearsay evidence under the rule, and for what purposes the evidence may be admitted.

Note on Constitutional Considerations: Under the Confrontation Clauses of the 6th Amendment to the U.S. Constitution (applied to states through the 14th Amendment) and Article II, Section 14 of the New Mexico Constitution, criminal defendants have a right to cross-examine witnesses against them. This right may be compromised when a hearsay statement is admitted into evidence without the declarant being available for cross-examination. Consequently, the U.S. Supreme Court has ruled that when hearsay evidence offered against a criminal defendant is “testimonial” and the declarant is unavailable to testify at trial, the federal Confrontation Clause prohibits admission of the evidence unless the defendant had a prior opportunity to cross-examine the declarant. See Crawford v. Washington, 541 U.S. 36 (2004).

Testimonial Statements
The Supreme Court defined in Crawford a “core class” of testimonial statements that require the opportunity for cross-examination. This core class may include ex parte in-court testimony (or its functional equivalent) and extra-judicial statements contained in formalized testimonial materials. Examples may include:

• Affidavits.
• Depositions.
• Statements made while in police custody.
• Statements made in response to police interrogation.
• Confessions.
• Prior testimony at a preliminary hearing, before a grand jury or during a former trial in which the defendant was unable to cross-examine.
• Similar pretrial statements that declarants would reasonably expect to be used in a prosecution.
• Statements made under circumstances that would lead an objective witness to reasonably believe that the statements would be available for use at a later trial.

Since Crawford, New Mexico’s appellate courts have held hearsay evidence to be testimonial under the Crawford decision in three cases. See State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309; State v. Johnson, 2004-NMSC-029, 136 N.M. 348; State v. Duarte, 2004-NMCA-117, 136 N.M. 404. In all three cases, the court held that admission of an unavailable accomplice’s statement violated the defendant’s confrontation rights because the statements were made while in police custody. According to the court, statements made during a custodial interview fall “squarely within the class of ‘testimonial’ evidence” described by Crawford. Johnson¸ 2004-NMSC-029, ¶7; Alvarez-Lopez, 2004-NMSC-030, ¶24; Duarte, 2004-NMCA-117, ¶13. Because the defendants in these three cases had no opportunity to cross-examine the accomplice, admission of the testimonial hearsay statements violated each defendant’s right to confrontation, even though the statements otherwise fell into the statement-against-penal-interest exception to the hearsay rule.

Nontestimonial Statements
In Crawford, the United States Supreme Court also identified types of evidence that are ordinarily admissible under exceptions to the hearsay rule that are not testimonial, and therefore are admissible against defendants in criminal cases, regardless of whether the defendant had an opportunity for prior cross-examination. Specifically, the court identified:

• Business records.
• Statements made in furtherance of a criminal conspiracy.

The New Mexico Supreme Court recently added blood alcohol reports to this list of nontestimonial hearsay evidence. In State v. Dedman, 2004-NMSC-037, ¶30, the Court determined that a blood alcohol report is not testimonial evidence because it is “generated by [State Laboratory Division] personnel, not law enforcement, and the report is not investigative or prosecutorial.” The Court further explained that even though “the report is prepared for trial, the process is routine, non-adversarial, and made to ensure an accurate measurement.” By characterizing the blood alcohol report as nontestimonial, the Court determined that the Crawford requirement of prior cross-examination did not apply and the report could be admitted under the public record exception to the hearsay rule.

When the out-of-court statement is not testimonial, the hearsay may be admitted if it falls into one of the “firmly rooted exceptions” to the hearsay rule. That is because these “firmly rooted exceptions” are considered to be sufficiently trustworthy to safeguard the defendant’s right to a fair trial, which is the purpose of the Confrontation Clause. See State v. Lopez, 2000-NMSC-003, 128 N.M. 410 (1999). The hearsay exceptions cited in the chart are all considered to be “firmly rooted,” meaning that a nontestimonial prior statement may be admitted under one of these exceptions without a constitutional violation.

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