The Confrontation Clause of the Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him."
In Crawford v. Washington
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
Determining which police
interrogations product Testimony
Nontestimonial (Primary Purpose is to meet an ongoing
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
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
Whether and when statements made to someone other than law
enforcement personnel are "testimonial?"
If so, whether the recording of a 911 call qualifies [as a
Court Police taking an unsworn
testimony cannot evade the Confrontation Clause
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.
Indeed, if there is one point for which no case--English or
early American, state or federal--can be cited, that is it.
Question Before Us
Whether, objectively considered, the interrogation that took
place in the course of the 911 call produced testimonial
Testimony is typically a solemn declaration or affirmation made
for the purpose of establishing or prove some fact.
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
McCottry was speaking about events as they were actually
She was not describing past events.
McCottry was facing on ongoing emergency.
Her call was a cry for help.
The questions asked of McCottry were necessary to resolve the
Questions were over the phone in a frantic matter.
Sylvias interrogation took place hours after the events
The questions asked of Sylva were to learn what happened.
Questions were at the station, in a tranquil environment, being
tape recorded by her interrogator.
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
Once the emergency ends, the operator proceeded to pose battery
McCottry statements were classified as nontestimonial.
Hammons v. Indiana
Court Interrogation was part of an
investigation into possible criminal PAST conduct.
There was no emergency in progress.
Amy told the officer things were fine.
There was no immediate threat.
The officer was NOT seeking to determine what is happening he
WAS seeking to determine what happened.
Purpose was to nail down the truth about a past criminal event.
Interrogation was conducted in a separate room away from her
Ex Parte Examination.
Interrogation was more formal. It was taken at the station.
Both participants were actively separate from the defendant.
Both statements recounted past criminal events.
Both took place sometime after the events occurred.
Court substitute for live statements
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
Initial Inquiry Discussion In relation to testimonials
Early investigations at the scene to determine the
exigency of the situation
often produced nontestimonials.
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
Rule - Forfeiture by Wrongdoing
The rule of forfeiture by wrongdoing . . . extinguishes
confrontation claims on essentially equitable grounds.
That is, one who obtains the absence of a witness by wrongdoing
forfeits the constitutional right to confrontation.
Government has to prove by a preponderance of the evidence
Was unable to find forfeiture by wrongdoing.
The Sixth Amendment operates to EXCLUDE Amys affivit.
- Affirm Supreme Court of
Reverse Supreme Court
DISSENT Justice Thomas
Majority Adopts unpredictable test
Determining the primary purpose of police interrogations
characterizes statements as testimonials and are therefore
Endorses plain definition of testimony.
Was not set out in detail and thus subject to the confrontation
Statements must include extrajudicial statements.
Contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions.
It fails to acknowledge that all of the cases it cites fall
within the narrower category of formalized testimonial
Used for abuses occurring in ex parte statements.
Can be used to evade the formalized process.
Responding to 911 calls
Requires a hierarchy of purpose that will rarely be present and
is not reliably discernible.
Inquiry into the function served by the interrogation.
Cause disconnection from the prosecutioral abuses targeted by
the Confrontation clause.
Difficult to determine who caused the violations: Police,
prosecutor, or judge.
Neither is testimonial
911 call in Davis.
Police questioning in Hammon.
Statements were not custodial.
Statements were not mirandized.
No attempt to offer hearsay evidence to evade confrontation.
Statements are nontestimonial and admissible under the
The pronouncement of the primary motive behind the
interrogation calls nothing more than a guess by the courts.