Supreme Judicial Court (August 29, 2005)
Statements made in response to questioning by law enforcement agents are per se testimonial, except when the questioning is meant to secure a volatile scene or to establish the need for or provide medical care, and are inadmissible unless the declarant is available at trial or there was a prior opportunity for cross-examination.
Gonsalves was charged with A&B and ABDW for choking his girlfriend and hitting her head on the floor. When the police arrived at the scene, the defendant was gone and the officers found the victim "hysterical, ranting, loud, hyperventilating and pacing." One officer asked her what happened and spoke with her for no more than five minutes. In response, the victim described the defendant's assault. At trial, the victim asserted her Fifth Amendment privilege, and she was deemed unavailable. In light of Crawford, the district court ruled the victim's out-of-court statements inadmissible.
Under Crawford, out-of-court statements that are "testimonial" may not be admitted unless the declarant is available at trial, or when the declarant is unavailable to testify, the defendant had a prior opportunity to cross-examine the declarant. An out-of-court statement that is "part of an affidavit, deposition, confession or prior testimony at a preliminary hearing, before a grand jury or at a former trial, or if it was procured through law enforcement interrogation," are per se "testimonial." The SJC broadly defined interrogation to include all questioning by law enforcement officials except "emergency questioning by law enforcement to secure a volatile scene or determine the need for or provide medical care."
If the out-of-court statement is not per se "testimonial," it may nonetheless be "testimonial" if the court determines that "a reasonable person in the declarant's position would anticipate the statement's being used against the accused in investigating and prosecuting a crime." If the statement is neither per se "testimonial" nor "testimonial" in fact, its admissibility is governed by standard hearsay rules and exceptions.