Davis v. Washington, 547 U.S. 813 

Supreme Court of the United States

2006

Chapter

7

Title

Hearsay and Constitutional Issues

Page

318

Topic

Testimonial is subject to the Confrontation Clause

Quick Notes

The Confrontation Clause of the Sixth Amendment, as interpreted in Crawford v. Washington, does not apply to "non-testimonial" statements not intended to be preserved as evidence at trial. Although McCottry identified her attacker to the 911 operator, she provided the information intending to help the police resolve an "ongoing emergency," not to testify to a past crime. The Court reasoned that under the circumstances, McCottry was not acting as a "witness," and the 911 transcript was not "testimony." Therefore, the Sixth Amendment did not require her to appear at trial and be cross-examined.

Court - The US Supreme Court affirmed Davis' conviction, but overturned Hammon's.

Davis 911 Call Nontestimonial NOT Subject to Confrontation Clause

o         The US Supreme Court found that questioning in Davis was not "interrogation" and the statements were not "testimonial." 

Nontestimonial (Primary Purpose is to meet an ongoing emergency)

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.

Hammon Interrogation - Testimonial - Subject to Confrontation Clause

o         Questioning in Hammon was "interrogation" and the statements were "testimonial."

o         Subject to Confrontation Clause

Testimonial (No ongoing emergency, to establish or prove past events)

o         They are testimonial when the circumstances objectively indicate that there is no [such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Testimony (Def)

o         Testimony is typically a solemn declaration or affirmation made for the purpose of establishing or prove some fact.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether statements made to law enforcement personnel during a 911 call or at a crime scene are
testimonial and thus subject to the requirements of the Sixth Amendments Confrontation Clause?  No.

o         Under the U.S. Supreme Court's interpretation of the Sixth Amendment in Crawford v. Washington, may statements made to police during investigation of a crime, though not made with the intent to preserve evidence, be admitted in court without allowing defendants to cross-examine the person who made the original statements?  Yes.

Procedure

Trial

o         In Davis, the Df - challenged his conviction, arguing that testimony by a 911 operator about a caller identifying him as her assailant was inadmissible hearsay.

o         In Hammon, the Df - challenged his conviction, arguing that a police officer's testimony about statements made by the alleged victim at the crime scene was inadmissible hearsay

Appellant

o          

Supreme

o         Davis - Affirm Supreme Court of Washington.

o         Hammond Reverse Supreme Court of Indiana.

Facts/Cases/Public Policy

Discussion

Key Phrases

Rules

Pl Davis

Df Washington

Davis v. Washington

o         Davis the X-boyfriend physically abused (punched) McCottry (woman).

Operator Obtaining Information

o         Operator collected Davis information.

o         At one time during the conversation, she told McCottry to stop talking and answer her questions.

o         Davis said his purpose was to give his stuff since McCottry was moving.

Officers Only Witnesses

o         Could not testify to cause of the injuries.

McCottry did not testify.

o         She could have.

Trial Court Admitted 911 Recording

o         Jury convicted him

Davis Objected

o         Confrontation Clause of the Sixth Amendment.

Hammons v. Indiana

o         Police responded to a reported domestic disturbance.

o         Hershel became irate over the fact their daughter was going to a boyfriends house.

Amys Affidavit

o         Broke our Furnace & shoved me down on the floor into the broken glass.

o         Hit me in the chest and threw me down.

o         Broke our lamps & phone.

o         Tore up my van where I couldn't leave the house.

o         Attacked my daughter.

State Convicted Hershel

o         Amy did not appear.

o         Officers testimony was admitted as a present sense impression.

o         Amys statements were admitted as excited utterances.

Indiana Supreme Court

o         Affirmed

The Confrontation Clause of the Sixth Amendment

o         In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."

In Crawford v. Washington

o         We held that this provision bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination."

Court Determining which police interrogations product Testimony

Nontestimonial (Primary Purpose is to meet an ongoing emergency)

o         Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.

Testimonial (No ongoing emergency, to establish or prove past events)

o         They are testimonial when the circumstances objectively indicate that there is no [such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis v. Washington - Analysis

Questions

o         Whether and when statements made to someone other than law enforcement personnel are "testimonial?"

o         If so, whether the recording of a 911 call qualifies [as a testimonial]?

Court Police taking an unsworn testimony cannot evade the Confrontation Clause

o         In any event, we do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition.

o         Indeed, if there is one point for which no case--English or early American, state or federal--can be cited, that is it.

Court Question Before Us

o         Whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements?

Testimony (Def)

o         Testimony is typically a solemn declaration or affirmation made for the purpose of establishing or prove some fact.

911 Call

o         The 911 call is ordinarily not designed primarily to establish or prove some past fact, but to describe current circumstances requiring police assistance.

Difference between interrogation in Davis versus Crawford

In Davis

o         McCottry was speaking about events as they were actually happening.

o         She was not describing past events.

o         McCottry was facing on ongoing emergency.

o         Her call was a cry for help.

o         The questions asked of McCottry were necessary to resolve the present emergency.

o         Questions were over the phone in a frantic matter.

In Crawford

o         Sylvias interrogation took place hours after the events occurred.

o         The questions asked of Sylva were to learn what happened.

o         Questions were at the station, in a tranquil environment, being tape recorded by her interrogator.

Court

o         McCottry emergency statements were not taken in a courtroom tribunal, she was unavailable and she was not cross-examined.

Emergency Statements that turn into testimonial

o         Once the emergency ends, the operator proceeded to pose battery questions.

o         McCottry statements were classified as nontestimonial.

Hammons v. Indiana Analysis

Court Interrogation was part of an investigation into possible criminal PAST conduct.

o         There was no emergency in progress.

o         Amy told the officer things were fine.

o         There was no immediate threat.

o         The officer was NOT seeking to determine what is happening he WAS seeking to determine what happened.

o         Purpose was to nail down the truth about a past criminal event.

In Davis

o         Interrogation was conducted in a separate room away from her husband.

o         Ex Parte Examination.

In Crawford

o         Interrogation was more formal.  It was taken at the station.

Similarities

o         Both participants were actively separate from the defendant.

o         Both statements recounted past criminal events.

o         Both took place sometime after the events occurred.

Court substitute for live statements

o         Such statement under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination, they are inherently testimonial.

Initial Inquiry Discussion In relation to testimonials

o         Early investigations at the scene to determine the exigency of the situation often produced nontestimonials.

o         In cases like Amy, where the statements are not a cry for help and not from a threatening situation, then it is IMMATERIAL that the statements were initial inquiries.

Rule - Forfeiture by Wrongdoing 804(b)(6)

o         The rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds.

o         That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.

o         Government has to prove by a preponderance of the evidence standard.

Court Holding

o         Was unable to find forfeiture by wrongdoing.

o         The Sixth Amendment operates to EXCLUDE Amys affivit.

Davis - Affirm Supreme Court of Washington.

Hammond Reverse Supreme Court of Indiana.

DISSENT Justice Thomas

Majority Adopts unpredictable test

o         Determining the primary purpose of police interrogations characterizes statements as testimonials and are therefore inadmissible.

Concurs Davis.

Dissents Hammonds.

Crawford

Testimony

o         Endorses plain definition of testimony.

o         Was not set out in detail and thus subject to the confrontation clause.

Solemnity

o         Statements must include extrajudicial statements.

o         Contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.

Fails - formalized testimonial

o         It fails to acknowledge that all of the cases it cites fall within the narrower category of formalized testimonial materials.

Confrontation Clause

o         Used for abuses occurring in ex parte statements.

o         Can be used to evade the formalized process.

Responding to 911 calls

o         Requires a hierarchy of purpose that will rarely be present and is not reliably discernible.

Objective

o         Inquiry into the function served by the interrogation.

o         Cause disconnection from the prosecutioral abuses targeted by the Confrontation clause.

o         Difficult to determine who caused the violations:  Police, prosecutor, or judge.

Neither is testimonial

o         911 call in Davis.

o         Police questioning in Hammon.

o         Statements were not custodial.

o         Statements were not mirandized.

o         No attempt to offer hearsay evidence to evade confrontation.

o         Statements are nontestimonial and admissible under the confrontation clause.

Thomas Summary

o         The pronouncement of the primary motive behind the interrogation calls nothing more than a guess by the courts.

Rules

Class Notes

Supplement

Crawford v. Washington

Supreme Court Holding

o         In this case, the State admitted Sylvia's testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her.

o         That alone is sufficient to make out a violation of the Sixth Amendment.

o         Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.