What is the test for questioning a witness in a domestic violence case?

the perpetrator is still at large, or whether there is a current threat to the public. ( Michigan v. Bryant (2011) 562 U.S. 344, 367, 131 S.Ct. 1143, 179 L.Ed.2d 93.) The key distinction is whether the primary purpose of the questioning is to establish past facts, or to respond to an ongoing emergency. ( Id. at p. 370, 131 S.Ct. 1143.) "The existence of an emergency or the parties' perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial[.]" ( Ibid. ) Whether there is an emergency depends "on the type and scope of danger posed to the victim, the police, and the public." ( Id. at pp. 370371, 131 S.Ct. 1143.)

Applying those standards and exercising our independent judgment, we conclude the primary purpose of the questioning here was to establish the identity of the assailant for use in a later criminal prosecution. The officer went to the hotel in response to a report of "some type of fight that occurred in one of the rooms." On arrival he found defendant's girlfriend safe in the office with the hotel manager, and no one else present. The officer asked what had happened, and the victim showed the marks on her back and eventually said defendant whipped her with a belt. As a domestic violence incident, there was "a narrower zone of potential victims" and a lower likelihood of posing an ongoing threat to the public at large. ( Michigan v. Bryant, supra , 562 U.S. at p. 363, 131 S.Ct. 1143.) The circumstances therefore did not indicate a present threat to the victim or public. (See, e.g., Davis v. Washington, supra , 547 U.S. at pp. 829830, 126 S.Ct. 2266 [no emergency after domestic violence incident where responding officer "heard no arguments or crashing and saw no one throw or break anything," and there was "no immediate threat" to victim].) The officer's questioning elicited testimonial hearsay, and since the declarant was not subject to cross examination, it should have been excluded under the Sixth Amendment.