When the Florida Supreme Court recently decided State v. Lopez, 974 So. 2d 340 (Fla. 2008), the court carved out a new rule to determine if an excited utterance is testimonial--the "on-going emergency rule." This article reviews the excited utterance exception; reviews Crawford v. Washington, 541 U.S. 36 (2004), and its application in Lopez; reviews Lopez and argues why the new on-going emergency rule from the Florida Supreme Court creates too rigid a test for determining whether a statement is testimonial; and looks at how Lopez has been applied. Finally, it will examine the future ramifications of the rule for criminal defense attorneys and prosecutors.
