Category Archives: Judges

Is That 9-1-1 Call Going to Get Admitted into Evidence?

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

You would think that the answer to this question would be a nice and simple yes or no. However, like most things in the law, it’s much more nuanced than a non-lawyer may initially believe. If you’re a lawyer reading this, you know that the answer is “it depends.”

9-1-1 Call Has Confrontation Issues

As an initial matter, the United States Constitution guarantees a criminal defendant the right to “confront” his or her accuser. This was interpreted by the U.S. Supreme Court to require a defendant to have the ability to cross-examine a person who makes testimonial statements. Crawford v. Washington, 541 U.S. 36 (2004). In other words, an out-of-court statement, which is testimonial in nature, is only admissible if the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness.

So what is a “testimonial” statement? Again, it’s not as simple as you may initially believe. The courts have developed a “primary purpose” test to determine whether an out-of-court statement is testimonial. If the primary purpose of the statements is to enable law enforcement to meet an ongoing emergency, the statements are not testimonial. 9-1-1 calls made for the purpose of summoning law enforcement to respond to a crime that already occurred or that is in progress are not testimonial by that definition. Davis v. Washington, 547 U.S. 813 (2006). On the other hand, statements taken by police officers in the course of interrogation are “testimonial” and subject to the Confrontation Clause when the circumstances indicate there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events relevant for later prosecution.

As such, most 9-1-1 calls will be deemed non-testimonial and not subject to exclusion under Confrontation Clause analysis. Of course, some portions of any given call may be “testimonial” while others are not. Therefore, a careful analysis of all the statements made during a call should be scrutinized for confrontation issues.

But is the Call Hearsay?

Generally speaking, even if a statement passes Confrontation Clause analysis, it is still subject to exclusion if it is hearsay and does not satisfy any exceptions to the exclusion of hearsay. Fla. Stat. 90.802 holds that hearsay evidence is inadmissible.

Fla. Stat. 90.801 states, in relevant part:

(1) The following definitions apply under this chapter:

(a) A “statement” is:

1. An oral or written assertion; or

2. Nonverbal conduct of a person if it is intended by the person as an assertion.

(b) A “declarant” is a person who makes a statement.

(c) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

With regards to hearsay evidence, the first determination a court must make is for what purpose is the evidence offered. If it’s offered for the truth of that statement, it is hearsay and inadmissible. If it’s offered for another purpose and the evidence remains relevant, it’s admissible. For example, if a 9-1-1 caller states, “the driver ran a red light before crashing into my vehicle,” that statement, when offered by the State to prove that the defendant ran a red light, is inadmissible unless it satisfies an exception to the exclusion of hearsay evidence. On the other hand, a 9-1-1 caller’s question about whether he needs to remain on scene is not hearsay because it’s not proof of anything relevant to a charge.

As can be seen just from the definitions of hearsay, most statements made to a 9-1-1 operator will be hearsay. Information such as the identity of the perpetrator, what he/she did, what he/she looked like, where the crime occurred, etc. would be offered by the State to prove the content of those statements.

But that doesn’t end our inquiry.

But is the 9-1-1 Call an Excited Utterance?

Fla. Stat. 90.803 defines an “excited utterance” as “A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” This type of statement is not inadmissible into evidence even though the declarant is available to testify at trial.

The rationale behind this exception to the hearsay rule is that a person who is excited as a result of a startling event does not have the reflective capacity essential for conscious misrepresentation. Therefore, statements that are made by a person who is in a state of excitement and has not had the opportunity to engage in reflective thought are considered to be essentially spontaneous and have sufficient guarantees of truthfulness. As long as the excited state of mind is present when the statement is made and there has not been an opportunity to engage in reflective thought, the statement is admissible. Moreover, courts have held that this excited state may exist a significant length of time after the event though no bright line test has been established.

Florida’s appellate courts have offered guidance in determining whether the necessary mental state exists by identifying a host of relevant factors which bear on the determination: the length of time between the startling event and the statement; the age of the declarant; the physical and mental condition of the declarant; the characteristics of the event; and the subject matter of the statements. Of course, the burden of establishing that a subject statement sufficiently meets the conditions so as to be deemed an “excited utterance” is upon the proponent of the evidence. Moreover, if the time between the startling event and the statement is long enough to permit reflective thought by the declarant, the offering party has the burden of demonstrating that the declarant did not actually engage in reflective thought, presumably a difficult burden to meet.

Generally speaking, 9-1-1 calls made at the time of the crime or immediately thereafter will meet the requirements for the excited utterance exception to the bar on admission of hearsay evidence. However, when the call is delayed and the person is no longer under the stress and excitement of the call, it will be excluded.

State v. Gotschall

In State v. Gotschall, 27 Fla. L. Weekly Supp. 475a (Osceola Cty. Ct. July 15, 2019), the trial judge had to consider whether a 9-1-1 call, relaying the theft of a service dog, was admissible into evidence.

The call was made 30 minutes after the alleged crime and relayed information such as the location of the crime, the sex of the assailant, names of witnesses, locations of video cameras, and the victim’s personal identity information.

In an extremely well-reasoned opinion, the Court excluded the evidence. As an initial matter, the court found that the call was non-testimonial because the primary purpose of the call was to meet an on-going emergency and to summon law enforcement to the scene of the crime. However, the court found that the call was hearsay because the prosecutor wanted to use the statements made to prove that, in fact, the assailant was female, that the victim’s dog was stolen from her, and the location of the crime. It further held that the statements were not excited utterances because there was no evidence that the caller was still under the stress of the event and that the caller, in the 30 minutes before the call, did not engage in reflective thought relative to the crime.

Valrico Trial Attorney

Adam L. Bantner, II is a board certified criminal trial law attorney. He is conveniently located in the heart of Valrico and can handle your criminal defense matters in Hillsborough, Polk, and surrounding counties. Give him a call today at 813.397.3965 to set up your free consultation!

Judges Get This One Wrong All The Time!

An Excited Utterance Can Be Admissible Even When Self-Serving

By Adam L. Bantner, II

During the course of a criminal trial it is not unfamiliar for a judge to sustain an hearsay objection whenever the hearsay statement is that of the person on trial. This is true even when the statement qualifies for admission under an exception to the hearsay rule. The common refrain from the prosecutor is, “But judge, it’s self-serving. Self-serving hearsay is inadmissible.” This can be enough to persuade the judge. 

However, criminal defense attorneys have a new case with which to arm themselves against this wrong line of thinking. The Fourth District Court of Appeal in Hinck v. State, 43 Fla. L. Weekly D2681c (Fla. 4th DCA 2018) held that so long as the particular requirements of the exception are met, in this case it was an excited utterance, the self-serving nature of the statement will not automatically preclude its admission into evidence; it is but one consideration.

The Excited Utterance Hearsay Exception

Fla. Stat. 90.803(2) allows for the admission of an “excited utterance” when the following criteria is met: [T]he statement must be made: (1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event. Hayward v. State, 24 So.3d 17 (Fla. 2009). Conspicuously absent is any requirement that the statement not benefit the defendant if the statement is his. 

The confusion comes from the courts’ ability to blend the requirements for the admission of a spontaneous statement and excited utterance. It shouldn’t be done, but an element for the admission of a spontaneous statement is it not be made under circumstances which indicate its lack of trustworthiness. Obviously, you don’t want unreliable evidence to be admitted; but the fact that a person is under the stress or excitement of a startling event is exactly what gives an excited utterance its trustworthiness. If the statement is fabricated, then its not being made under stress or excitement. As such, this requirement is unnecessary for an excited utterance to be admitted. 

State v. Hinck

In this case, Hinck had stabbed a man with whom he met online for a casual sexual encounter. Hinck claimed that he had a change of heart about going through with the act and that the victim of the stabbing had tried to force himself upon Hinck. Hinck claimed to have responded in self defense by using his knife.

Upon coming down the stairs from the hotel room, Hinck stated to the hotel attendant, “I’ve been attacked; I stabbed someone.” This is the statement to which the state objected. The trial court sustained that objected and Hinck was ultimately convicted. 

However, the appellate court reversed the conviction because the statement should have been admitted and such error was not harmless.

Call The Bantner Firm

If you find yourself or someone you love facing a serious felony allegation, you need an attorney who knows his way around the courtroom. Adam Bantner is a board certified criminal trial law attorney helping the accused in Hillsborough County. Call us today for your free consultation. 813.397.3965.

Stay in Your Lane: The Role of the Judge

By: Adam L. Bantner, II, Board Certified Criminal Trial Law Attorney

“The judge has five basic tasks. The first is simply to preside over the proceedings and see that order is maintained. The second is to determine whether any of the evidence that the parties want to use is illegal or improper. Third, before the jury begins its deliberations about the facts in the case, the judge gives the jury instructions about the law that applies to the case and the standards it must use in deciding the case. Fourth, in bench trials, the judge must also determine the facts and decide the case. The fifth is to sentence convicted criminal defendants.” Role of the Judge and Other Courtroom Participants, The Judge,, June 6, 2018.

Additionally, Canon 2A of the Florida Code of Judicial Conduct states, “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

When a judge breaks from these parameters, the courtroom goes from a place of justice to an inquisition. Additionally, it will cause whatever work was done in that courtroom to be reversed on appeal. A recent example is Parr v. State, 43 Fla.L.Weekly D1161a (Fla. 4th DCA 2018).

Parr was placed on probation for on two counts of Dealing in Stolen Property and two counts of False Information to a Secondhand Dealer. In November 2015 his probation was violated, and a hearing was conducted in November 2016. After plea negotiations broke down, and facing up to 40 years in prison, Parr entered an admission to violating his probation and a sentencing hearing as held.

At the sentencing hearing, Parr asked for a modification of probation for him to be placed in a substance abuse treatment facility and he called his grandfather as a witness. Because Parr had indicated that most, if not all, of his victims were family, he wanted to show the Court that his family wanted him to receive help and not incarceration. As soon as Parr finished his direct examination of his grandfather, the Court, and not the prosecution, begin cross-examining the grandfather. The Court began by asking whether Parr was a danger to the community and the grandfather responded, “Absolutely not.” The following examination ensued:

THE COURT: Two other – two other grand thefts, are you familiar with those?

GRANDFATHER: You’ll have to tell me what they are.

THE COURT: I don’t know, I’m asking you. Do you know what they are?

THE DEFENDANT: I don’t – one was – one was —

THE COURT: I’m not asking you, I’m asking [your Grandfather].

GRANDFATHER: Sir, I don’t know.

THE COURT: Cause you’re coming into my courtroom and you’re saying he’s not a danger to anyone else.

GRANDFATHER: I – I don’t think –

THE COURT: He’s never victimized anybody else?

GRANDFATHER: No, not that I know of.

THE COURT: Not that you know of.


THE COURT: Is your lack of knowledge intentional or accidental in that regard?

GRANDFATHER: My lack of knowledge is because –

THE COURT: Are you keeping your head in the sand –

GRANDFATHER: I have no knowledge of that.

THE COURT: As far as whether he’s violated anyone else’s rights?

GRANDFATHER: I do not know that he has.

THE COURT: Okay. But is that intentional on your part or are you just accidental – are you – are you –

GRANDFATHER: That’s the way I feel.

THE COURT: Did you inquire of him in that regard?


THE COURT: Have you looked into it?

GRANDFATHER: Uh, not intentionally look into it.

THE COURT: Because you just told me he’s not a threat to anybody else.

GRANDFATHER: I do not believe him to be a threat to anyone.

THE COURT: Okay. Because you don’t know if he’s – he’s violated anyone else’s rights.

GRANDFATHER: Not – it has not come to my attention that he has.

THE COURT: How about assault?


THE COURT: Improper exhibition of a weapon?


THE COURT: That is no, you don’t know anything about it.

GRANDFATHER: He’s not done that.


THE COURT: It’s on his record. I’m looking at his scoresheet.


THE COURT: I’m looking at his scoresheet. It’s on his record.

GRANDFATHER: I don’t know anything about a gun. I have guns, but I don’t know that –

THE COURT: I don’t know that it’s a gun –

GRANDFATHER: He’s every had any –

THE COURT: It says weapon, it doesn’t mean it’s a gun. Resisting a merchant, you’re not a merchant, are you?


THE COURT: Resisting an officer without violence, are you aware of that?


THE COURT: Driving while license suspended, theft – another theft charge. You’ve told me you don’t know of any other victims other than your family.

GRANDFATHER: That’s correct.

THE COURT: Okay. And he’s violated your family’s rights because of what, a drug problem?

GRANDFATHER: No, I don’t know that he’s ever been on drugs.

THE COURT: So you don’t know what motivates him to do these things?

GRANDFATHER: I think he just thought he could get away it and, uh –

THE COURT: So but what – what –

GRANDFATHER: It was proven not so.

THE COURT: We know in our – in the world that we live in, people do things for different reasons. Most criminals have drug problems and they violate people’s rights, they steal from them to get money to get drugs or to buy whatever they want. How do you – who is he – what does – what does he do? How is it – he just violates the rights of people in your family? Does he hate all of you? What – what’s the situation? I don’t get it.

GRANDFATHER: I just thought it was – I think he thought it was an easy way to get things so he could, uh, prepare or to provide for himself.

THE COURT: And he limits it to your family in that —

GRANDFATHER: The occasions when he’s done that have been limited to myself, uh, my live-in girlfriend and – and his mother.

THE COURT: All right. Those are the only questions I have. Does the State have any additional questions?

The appellate court held that this questioning went too far and ultimately reversed the sentence and remanded the case for a resentencing before a different judge.

            In so doing, the Court quoted from State ex rel. Davis v. Parks, 141 Fla. 516, 519-20, 194 So. 613, 615 (1939): “This Court is committed to the doctrine that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice.

It is not enough for a judge to assert that he is free from prejudice. His mien and the reflex from his court room speak louder than he can declaim on this point. If he fails through these avenues to reflect justice and square dealing, his usefulness is destroyed. The attitude of the judge and the atmosphere of the court room should indeed be such that no matter what charge is lodged against a litigant or what cause he is called on to litigate, he can approach the bar with every assurance that he is in a forum where the judicial ermine is everything that it typifies, purity and justice. The guaranty of a fair and impartial trial can mean nothing less than this.”

That language may be 80-years-old, but it cannot be said better and educates both the bench and bar to remain vigilant that all parties simply do their job.