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The Confrontation Clause and Constitutional Line-Drawing

This morning I visited the Supreme Court to watch the oral arguments in two Confrontation Clause cases, Davis v. Washington and Hammon v. Indiana.  The Confrontation Clause states that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Both Davis and Hammon cases are follow-ups to the Supreme Court’s watershed opinion in Crawford v. Washington, which overruled Ohio v. Roberts and held that “testimonial” statements must be subject to cross-examination unless the witness is unavailable and the defendant had prior opportunity to examine the witness.  Crawford left open a big important question: Just what makes a statement “testimonial” for purposes of the Confrontation Clause?

The two cases today presented the Supreme Court with the first opportunity to answer this question.  Both involved domestic violence prosecutions.  Davis considered the admission of 911 telephone call made by a victim of domestic violence who claimed that a man beat her, but who was unable to testify at trial about the beating.  Hammon involved a police visit to the home following a domestic violence report, in which the girlfriend explained what had happened and the officers asked the girlfriend to write out a short affidavit.   The question in both cases: Are these statements “testimonial,” such that admission of the statements without the defendant being able to cross-examine the alleged victim violates the defendant’s Confrontation Clause rights?

It was a fun argument to watch, in part because it was like a law school class on devising and applying a legal rule.  Each litigant offered his own test of what makes a statement “testimonial,” and the Justices mulled over the different tests and their impact in light of the history, text, and purposes of the Confrontation Clause.  The broad problem, it seemed to me, is that witnesses of criminal activity interact with government officials in countless different ways.  Sometimes a witness is speaking casually, sometimes formally; sometimes he wants the police to prosecute, sometimes he is concerned with his own safety; sometimes he knows he is speaking with the police, sometimes he is merely overheard; sometimes the officers are interested in bringing a case, sometimes they’re not.  Many cases involve mixed motives, and it can be hard to reconstruct the motives of officers and witnesses alike.  Devising a single rule which determines which witness statements count as “testimonial” is really quite difficult. 

The argument was also interesting because it was unusually hard to tell how the votes might line up.  By the end of the Rehnquist Court, most criminal procedure cases were fairly predictable: for the most part, advocates focused their attention on Justice O’Connor, and to a lesser extent Kennedy and Breyer.  But Crawford questions under the Roberts Court involve new ground: All seven of the Justices who were on the Court when Crawford was decided joined the Crawford majority opinion, and no one knows how Chief Justice Roberts and Justice Alito will come down on these questions.

There weren’t many clues at oral argument as to how the votes would line up, but that won’t stop me from making amatuerish and uninformed predictions.  If I had to guess, I would guess that the government scores a relatively narrow win in Davis (the 911 case) but that the defense wins in Hammon (the personal visit case).