During trial, witnesses generally cannot testify about what was said outside of court. Such testimony is usually deemed “hearsay.”
In Massachusetts, hearsay is defined as
a statement that (1) the declarant does not make while testifying at the current trial or hearing, and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Mass. G. Evid. § 801(c)
There are dozens of exceptions to this general rule. But, when it comes to criminal trials, all hearsay exceptions are trumped by the defendant’s right to confront his accusers established by the Sixth Amendment of the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights.
The United States Supreme Court, in Crawford v. Washington, held that if an out-of-court statement is testimonial, it may not be used at trial regardless of any applicable hearsay exception.
The Supreme Judicial Court has defined “testimonial statements” as follows:
Testimonial statements are those made with the primary purpose of “creating an out-of-court substitute for trial testimony.”…A statement made in response to police questioning is testimonial where “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”…The test is an objective one; we examine “the primary purpose that a reasonable person would have ascribed to the statement, taking into account all of the surrounding circumstances.”
Commonwealth v. Wardsworth, 482 Mass. 454, 464 (2019).
It should be noted that answers to police questions when they are attempting to resolve an ongoing emergency cannot be considered testimonial. See Commonwealth v. Smith, 460 Mass. 385, 395. (2011).
An exception to the Crawford rule exists only when (1) the witness is unavailable to testify at trial and (2) the defendant has had an opportunity to cross examine the witness during an earlier court proceeding.