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).
I think Oren’s right about Hammon, but things could tilt the other way on Davis. Not all 911 calls are exited utterances (not that it matters), nor are they necessarily calls for help. Many are intended to be testimonials; some as threats to stop what is happening, and some as snap judgments to initiate an investigation. If she later flees and refuses to cooperate, her attempt to initiate an investigation should not be admitted. It’s a close one, but under the Davis facts, I’m betting on a close win for the defendant.
I’d agree that my gut instinct, from your description of these cases and from reading Crawford, is that the 911 call isn’t testimonial but the personal visit is. However, the more I think about it, the harder I find it to justify.
Was there any distinction between the cases offered at oral argument that the Justices were latching on to? Was it the identity of the state employee? The urgency of the report? Is it just that a 911 call isn’t “solemn” enough?
These kind of questions drive me nuts, and get at what I found so problemmatic about Crawford. How do we properly analogize (or not) between 911 calls and the practice of testifying by ex-parte affidvavit? Why impose a testimony requirement on a clause that nowhere uses the word?
One can only hope that this time around, the Justices will be more forthcoming about what makes a statement testimonial. I’m really interested to know who will be writing the opinion…
i just posted on my impressions from today’s argument at ex post. i agree with oren’s predictions about the outcomes. in answer to marghlar’s questions, the petitioners both argued that there was no difference between the identity of the state employee. the states (as well as the ASGs arguing for the USA as amicus) made a distinction based on the urgency of the statements: if they were made and received during the initial stages of response (when the officer or responder was focused on the safety of the declarant) they would not be testimonial, while if they were made later, after the scene was secure and there was no danger, it would be testimonial.
as to your second issue, under crawford, it clearly states that affidavits are on of the ‘core’ dangers that the confrontation clause was intended to prevent. i guess when the opinion is handed down, we’ll find out whether or not 911 calls were also such a violation.
Just for clarification–at issue in the Hammon case I think is the admissibility of the police officer relating what the victim told him when he arrived at the scene, not the affidavit that she later wrote out. The Indiana courts held, & I think the State basically concedes, that the affidavit clearly was testimonial (its admission was held to be cumulative harmless error), but the on-the-scene “excited utterance” of the victim was not.
Interesting impressions. And I’m very much looking forward to the opinions in these cases. I.P. law is my main gig, but I’ve taught evidence for the past 4 years now (including Crawford in two different sessions). This past time around, I taught Hammon and a smattering of 911 call cases. My own guess, not having been at the argument, is that the defendants in both these cases will prevail on their basic Conf Clause arguments; what I’m most interested to see is if the Court nudges everyone toward thinking hard about creating a robust theory of forfeiture that might help dissolve the Conf Clause problems in domestic violence cases. (Crawford itself is strongly supporting of a forfeiture-based exemption in dicta, and there are many lower court cases exploring forfeiture in other contexts (e.g., murder prosecutions).)
I think Orin has the right result but I think that the result will turn on the intent the police.
911 isn’t really the “police.” People call 911 for all kinds of reasons. They might need an ambulance, a fire truck be reporting a leaking gas or water main, etc., etc.. A statement made to a 911 dispatcher isn’t really made to the police any more than a statement to a paramedic would be.
Statements made to a police officer as part of an investigation are, of course, a different story.
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).
Potentius at Ex Post also attended the arguments and came to a similar conclusion: “In Hammon, it would not at all surprise me to find a unanimous decision in favor of the petitioner. In Davis, a much closer case, Washington might very well find 5 votes.”
I’m glad to see that my instincts – that Davis will be affirmed and Hammon reversed – are echoed by other observers. What’s aggravating about this new jurisprudence is that in Crawford the Court established that “formal” testimonial materials are per se “testimonial” and excludable – but now Scalia and the Petitioners are arguing that it would be ludicrous to suggest that less formal statements are more admissible under the Confrontation Clause. There’s obvious logic in that claim, but the problem is that (a) the implications of this notion, that “formal testimonial” evidence is only the beginning, were not explored when Crawford was adopted; if they had been, there might not have been 7 votes for that opinion; and (b) the CC is now potentially being construed in such a manner as to swallow hearsay law whole. If the concern is reliability of evidence, that’s what hearsay law, which is supposed to be left to the States, is supposed to address. If the concern is the govt’s extrajudicial gathering of non-live “testimony,” then the AGs (and USG) are right to focus on abuses of governmental power. The Court spent quite a bit of time discussing whether abuse of power is the right focus or whether Dfs’ rights to cross-examine should be the defining concern. The latter would mean that all hearsay law is up for grabs, and is clearly inconsistent with some obvious limits on CC exclusions. Unfortunately this more global or fundamental perspective was not articulated at the argument – which left the sense that the Court was coalescing around the Petitioners’ claim that their right to cross-examine is the sole driving force that should shape the jurisprudence.
Other thoughts welcomed.
What some may not know about the Davis case is the extent that Jeff Fisher (defense atty) went to provide a record showing that 911 operators are specifically trained to gather evidence in situations such as these because often times the victim won’t testify at trial. 911 operators have a very explicit script for getting information, a script that was followed in Davis. This was not just a “cry for help.” The operator went to great lengths to get information on who, what, when, where, and how because she had been trained that this may be the only opportunity to gather evidence for trial.
tstaab:
much of the argument in davis focused on precisely that issue – whether the script was necessarily more than a cry for help, whether it was of a “dual nature,” or if at times it was solely for the purpose of assisting police officers in their rapid response duties. information such as the offenders name, DOB, and prior criminal record can assist the officer in assessing the potential for further danger (for instance, if someone has a weapons offense on his record, the officer would use additional care in responding). indeed, the 911 operator did go to great lengths to gather information, but we will all have to wait for the court’s opinion to find out whether that dialogue was solely investigatory, solely a cry for help, or some mix of the two.
I am eagerly anticipating the opinion of the Supreme Court on
these two cases. I have currently a pending criminal case against
me exactly on the same matter. There is no other evidences
against me besides the initial hearsay testimonies of my wife.
There was a trivial arguing/slapping/pushing incident between us after
which she became mad at me and called the police. There was no danger
for her when she called 911, no cries for help on the tape, no injuries.
She basically initiated a criminal complain against me at the time of the
call. She doesn’t want to push charges against me. Actually, we are happy
family again. But here is the “no-drop” prosecution policy in any DV case.
Which will be essentially an attempt by the government to destroy our family.
I am an immigrant and will be deported if convicted.
I hope the Court will uphold the fundamental constitutional confrontation
right in both cases. In any criminal case, it is a gross violation of
defendant’s confrontation right to introduce the critical evidence from
hearsay testimony without the ability of the defendant to cross-examine
the accuser. The Court should make a decision : Constitution or the special
interest group’s (domestic violence industry and the feminists) agenda.
Why the fundamental right should be sacrificed to the latter ?
Constitution really means confrontation in the cases like mine.
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