In a criminal case the accused has a constitutional right "to be confronted with witnesses against him." The basis for this right is that only after cross examination of such witnesses can a jury determine the truth of the accusation. Obviously, if a police officer testifies to "facts" related to him by a victim, and the victim doesn't testify, the accused has no opportunity for confrontation. Much of the criticism of the Military Tribunals at Guantanamo Bay comes from the use of hearsay evidence to convict.

Simple? Not quite. Michael Shea was convicted of assaulting his girl friend, who did not testify against him. The trial judge allowed a police officer to testify that he was dispatched to a "domestic in progress," met the hysterical and injured girl friend at her apartment, was told the boyfriend had fled, given the boyfriend's name, looked to make sure the boyfriend wasn't still in the apartment, and related what the girl had said about her injuries: head slammed into the wall, hair pulled out, and an injured neck.

Shea appealed claiming the police officer's testimony was hearsay which he could not confront by cross examination because the victim wasn't there.

The Vermont Supreme Court affirmed the conviction. It decided that the "facts" given by the officer were "non-testimonial" as distinguished from an officer repeating a victim's statement about the details of a crime which he obtained by interrogating the victim. In essence the Court ruled the evidence was like an officer simply describing what he personally observed: the condition of the victim, the physical properties of the apartment, the degree of imminent further harm either to himself or the victim, and the need for medical care. This, in spite of the fact that the identity of the accused, and the nature of the victim's injuries, was the result of the victim's speech.

The Court reasoned that when an officer is faced with an "ongoing" emergency, and his purpose is to determine whether immediate action must be taken to protect either himself or secure medical help for the victim, he/she is not investigating a crime but instead is describing an emergency and explaining his subsequent actions. "Investigation" involves determining past facts rather than present conditions. The Court acknowledged it was defining a fine line between "testimonial" and "non-testimonial" hearsay. Nevertheless, if the officer's purpose is to prevent or remediate harm, rather than to investigate a crime, his description of the "facts" including the spoken word of the victim is not hearsay.

The distinction drawn by the Court illustrates the degree of training required of police officers, and the judicial sophistication required to protect Constitutional Rights in a violent society. State v. Shea 2008 VT 114.