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Is Hearsay is Still Admissible in Maryland if the Identify of the Declarant is Unknown?

This criminal defense issue arises in situations where an unknown person makes a 911 call and the prosecutor tries to use the tape against a criminal defendant at trial. In State v. Parker, 365 Md. 299 (2001), the Maryland Court of Appeals confronted the issue of whether the statements of two unidentified declarants to a police officer following a shooting were admissible. In determining whether the statements of the unidentified declarants were properly admitted by the trial court under the excited utterance hearsay exception, the appellate court observed that:

Where the identity of the hearsay declarant is unknown, the courts hold that the party seeking to introduce the excited utterance carries a heavy burden to prove the requisite indicia of reliability. It is held that the burden of the proponent is heightened, primarily because it is more difficult to establish personal observation and spontaneity where the declarant is unknown. Id. at 314.

The court analogized the facts of that case to a Third Circuit case involving unknown declarants at the scene of a car accident. In the Third Circuit case, the court found that the proponent of the hearsay statement had not satisfied the heavy burden of admissibility because “the record…was void of any circumstances from which it could be inferred that the declarant personally observed the accident and that the declarant was excited when he spoke.” Id.

Furthermore, under Crawford v. Washington, some of the statements made by the 911 caller were testimonial. These statements “were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. 36, 52 (2004). In further defining the nature of testimonial statements, the Supreme Court in Davis v. Washington concluded that statements made to a 911 operator that are not related to assisting in an ongoing emergency are testimonial. 547 U.S. 813, 827-28 (2006).

If the prosecution seeks to have testimonial hearsay admitted, the defendant must have an opportunity to cross-examine the declarant at trial, or the declarant must be unavailable at trial and the defendant must have had a prior opportunity to cross-examine regarding the statement. Crawford, 541 U.S. at 59. Essentially, the Crawford decision has made it nearly impossible admit a 911 call, under these circumstances, into evidence.

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