Law School Case Brief
Davis v. Washington - 126 S. Ct. 2266
Statements are nontestimonial for purposes of the Confrontation Clause 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. 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.
The two cases required a determination of when statements made to law enforcement personnel during a 911 call or at a crime scene were "testimonial" and subject to the requirements of the Sixth Amendment's Confrontation Clause. In Case No. 05-5224, a 911 operator ascertained from Michelle McCottry that she had been assaulted by her former boyfriend, petitioner Davis, who had just fled the scene. McCottry did not testify at Davis' trial for felony violation of a domestic no-contact order, but the court admitted the 911 recording despite Davis' objection, which he based on the Confrontation Clause. He was convicted. The Washington Court of Appeals affirmed, as did the state supreme court, which concluded that the portion of the 911 conversation in which McCottry identified Davis as her assailant was not testimonial.
In Case No. 05-5705, when police responded to a reported domestic disturbance at the home of Amy and Hershel Hammon, Amy told them that nothing was wrong, but gave them permission to enter. Once inside, one officer kept petitioner Hershel in the kitchen while the other interviewed Amy elsewhere and had her complete and sign a battery affidavit. Amy did not appear at Hershel's bench trial for domestic battery, but her affidavit and testimony from the officer who questioned her were admitted over Hershel's objection that he had no opportunity to cross-examine her. Hershel was convicted and the Indiana Court of Appeals affirmed the conviction. The state supreme court also affirmed, concluding that, although Amy's affidavit was testimonial and wrongly admitted, it was harmless beyond a reasonable doubt.
Are statements made to law enforcement personnel during a 911 call or at a crime scene considered "testimonial" and subject to the requirements of the Sixth Amendment's Confrontation Clause?
No and Yes.
The Supreme Court of the United States affirmed the judgment of the Supreme Court of Washington and reversed the judgment of the Supreme Court of Indiana and remanded that case for proceedings not inconsistent with the Court's opinion. The Court held that a statement identifying a defendant during a 911 call was not "testimonial." A 911 call was not designed to establish or prove past facts, but to describe circumstances requiring police assistance. The caller spoke about events as they were actually occurring while facing an ongoing emergency, rather than describing past events. The elicited statements were necessary to resolve the emergency rather than to investigate events. In the other case, the statements of the alleged victim were made in response to an officer's questions in a room away from defendant when there was no immediate threat to her person. The purpose of the interrogation was investigatory. The statements recounted past events, they did precisely what a witness did on direct examination and were inherently "testimonial." The Court declined to relax the requirements in domestic violence cases but pointed out that the right to confrontation could be forfeited by wrongdoing.
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