Victims Statements as Evidence in New York

In People v. Mackey, 5 Misc. 3d 709, 785 N.Y.S.2d 870 (NY Co. Crim. Ct. 2004), the Court concluded that none of the victim's statements was testimonial. The facts in Mackey are as follows: a victim, who was crying and had a swollen cheek, approached a police officer. The officer asked the victim what was wrong and the victim replied that her boyfriend had punched her in the face, pushed her down, and tried to take her children. The officer asked whether the victim needed medical attention and where and when the incident had happened. After the victim answered those questions, the officer asked for a description of defendant. The victim pointed to defendant and stated: "There he goes," as the defendant approached them. In reaching its conclusion that the statements were not testimonial, the Court first noted that the victim initiated contact with the officer immediately after the alleged assault. The Court further noted that the victim's statements were not made in response to structured police questioning, given in a formal setting, nor contained within a formalized document, in contrast with the statement found inadmissible in Crawford, where the statement resulted from a custodial, Miranda-warned, tape recorded interrogation. The Mackey Court found that the primary purpose of the statements from both a subjective and objective perspective was to seek immediate protection, not to initiate investigative and prosecutorial action and bear witness against the defendant, and the questioning by the officer lacked the requisite formality to constitute a police interrogation. Id. at 714-715.