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.
Two cases were consolidated involving “testimonial statements”. The first case involved a 911 call from Michelle McCottry who alleged 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. However, the court admitted the 911 recording despite Davis' objection, which he based on the Sixth Amendment's Confrontation Clause. The admission of the 911 recording as evidence ultimately led to his conviction. The Washington Court of Appeals affirmed the trial court’s decision and so 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.
The second case involved the police response in a reported domestic disturbance at the home of Amy and Hershel Hammon wherein the former 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 in relevant part. The State Supreme Court also affirmed, concluding that although Amy's affidavit was testimonial and wrongly admitted, it was harmless beyond a reasonable doubt.
Can statements made to law enforcement personnel during a 911 call or at a crime scene, respectively, be considered testimonial?
No and yes, respectively.
The Court held that statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency, as in the case of McCottry’s 911 call. In this case, the Court asserted that 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. The Court contrasted it with the circumstances in the second case where 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. According to the Court, the purpose of the interrogation in the second case was investigatory. The Court concluded that statements 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.